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The Origins of the Doctrine of Sedition*

Published online by Cambridge University Press:  11 July 2014

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Shepherds of people had need know the calenders of tempests in the state; which are commonly greatest when things grow to equality; as natural tempests are greatest about the Equinoctia…. Libels and licentious discourses against the state, when they are frequent and open; and in like sort, false news often running up and down to the disadvantage of the state, and hastily embraced; are amongst the signs of troubles…. Seditious tumults and seditious fames differ no more but as brother and sister, masculine and feminine; especially if it come to that, that the best actions of a state, and the most plausible, and which ought to give greatest contentment, are taken in an ill sense, and traduced….

When discords, and quarrels, and factions are carried openly and audaciously, it is a sign the reverence of government is lost…. So when any of the four pillars of government are mainly shaken or weakened (which are Religious, Justice, Counsel, and Treasure), men had need to pray for fair weather.

Type
Research Article
Copyright
Copyright © North American Conference on British Studies 1980

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Footnotes

*

A shorter version of this paper was read at the Conference on British Studies meeting at the University of British Columbia in Vancouver on October 19, 1979. I wish to thank Dr. Mark Francis and Professor Louis Knafla for their comments on an earlier draft.

References

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3 “An aduertisement touching seditious wrytings,” PRO, SP12/235/81. This document—from the early or mid-Elizabethan period-appears to be the draft for a Star Chamber speech, which was customarily delivered by the lord chancellor or lord keeper to the assembled privy councillors, royal judges, and those justices of the peace who happened to be in Westminster at the time.

4 The Case de Libellis famosis, Easter 3 Jac I [1605], The Fifth Part of the Reports of Sir Edward Coke (London, 1738), fos. 125-26.

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23 Henry, VIII, c. 22 (Statutes of the Realm [London, 1810-1828], 3:471)Google Scholar. This act made seditious libel, by writing or printing, treasonable, but did not extend the penalties of high treason to seditious words.

24 Henry VIII, c. 13, printed in Elton, , Tudor Constitution, pp. 6163Google Scholar.

25 The Second Part of the Institutes of the Laws of England (4th ed.; London, 1671), pp. 225–29Google Scholar. Coke cites the Statute of 2 Richard II, c. 2. It was actually 2 Richard II, statute 1, c. 5 (Statutes of the Realm, 2:9Google Scholar). However, during the Peasants' Revolt in 1381, another statute (5 Richard II, stat. 1, c. 6, Statutes of the Realm, 2:20Google Scholar) stated that anyone starting a rumor, upon proof of such, was to be adjudged a traitor.

26 Henry VIII, c. 14 (Statutes of the Realm, 3: 850Google Scholar). This statute did not even require that the prophecies uttered or published be proved to be seditious.

27 Reports of the Deputy Keeper of the public records, 75 vols. (London, 1840-1914), 3:237–38Google Scholar.

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33 Tudor Royal Proclamations, vol. I: The Early Tudors, 1485-1553, ed. Hughes, P.L. and Larkin, J.F. (New Haven, 1964) no. 341Google Scholar. It seems pretty clear that the rumors uttered need not be false nor tend to incite disaffection towards the crown. However, such actions conceivably could be interpreted as sedition insofar as they would tend to promote a division between the governors and well-affected subjects. (See also PRO SP 10/8/9 and 8/66 for examples of letters from both the king and council ordering that proclamations punishing rumor-mongering by summary execution be enforced.)

In the cases of the bailiff of Romford and the priest and butcher of Windsor, the severity of the punishment may also be related to the fact that each of the offences was committed within the verge (i.e., within twelve miles) of royal palaces while the king's banner was displayed in time of rebellion. See Elton, , Policy and Police, p. 297Google Scholar; see also Keen, M.H., “Treason Trials under the Laws of Arms,” Transactions of the Royal Historical Society, 5th ser., 12 [1962]: 85103CrossRefGoogle Scholar, who says that “Matters of arms were not triable by common law. They were tried by the civil law and the laws of honor, over which only military courts had jurisdiction…. If the king unfurled his banner, a state of open war would exist and common law be partly suspended, with unforseeable consequences.”

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35 Boynton, Lindsay, “The Tudor Provost-Marshal,” English Historical Review, 77 (1962): 437–55CrossRefGoogle Scholar. But Lord Herbert of Cherbury speaks as if martial law was routinely used against “Rebells, Thievs, and Outlaws” in parts of Henrician Wales (The Life of Edward, First Lord Herbert of Cherbury; ed. Shuttleworth, J.M. [London, 1976], pp. 45Google Scholar). For some idea of the number of rebels executed during the mid-Tudor rebellions, see my Violence and Social Conflict in mid-Tudor Rebellions,” Journal of British Studies, 16 (1977): 3536Google Scholar.

36 Commission of lieutenancy (27 Eliz. I), printed in Select Statutes and other Constitutional Documents Illustrative of the Reigns of Elizabeth and James I, ed. Prothero, O.W. (2nd ed.; Oxford, 1898), pp. 154–55, cxviii-cxixGoogle Scholar; Boynton, , “The Tudor Provost-Marshal,” p. 433 ffGoogle Scholar.

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41 Elton, , Policy and Police, pp. 387–90Google Scholar. Remoteness from London may have meant that local commissions of oyer and determiner were the only alternative available to Norfolk besides provost-marshals.

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43 D.N.B., sub Edmond Peacham.

44 Barnes, T.G., Somerset, 1625-1640: A County's Government during the “Personal Rule” (Cambridge, Mass., 1961)CrossRefGoogle Scholar; Quarter Sessions Records for the County of Somerset, vol. 2: Charles I, 1625-1639, ed. Harbin, E.H. Bates (Somerset Record Soc., 24, 1908), pp. xxivxxvGoogle Scholar; Somerset Assize Orders, 1629-1640, ed. Barnes, T.G. (Somerset Record Soc., 65, 1959), p. xxxiiGoogle Scholar, Jones, W.J., Politics and the Bench: The Judges and the Origins of the English Civil War (London, 1971), p. 71Google Scholar; D.N.B., sub Sir Thomas Richardson; Meekings, , “Thomas Kerver's Case, 1444,” pp. 340–42Google Scholar.

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46 3 Edw. I, Westminster I, c. 34. See also Milson, S.F.C., Historical Foundations of the Common Law (London, 1969), p. 349Google Scholar; Harding, Alan, A Social History of English Law (Baltimore, 1966), pp. 8081Google Scholar; Siebert, , Freedom of the Press in England, pp. 118–19Google Scholar; Carr, Frank, “The English Law of Defamation: With Especial Reference to the Distinction between Libel and Slander,” Law Quarterly Review, 18 (1902):255ffGoogle Scholar.

47 Harding, , A Social History of English Law, pp. 8081Google Scholar.

48 Apparently, the author—if ever found—was punished under some other authority than that which derived from the statute. The source of that authority is not clear.

49 2 Rich. II., Statute 1, c.5; see also 12 Rich. II, c.11; see also Pike, L.O., A History of Crime in England, 2 vols. (Montclair, N.J., 1968 reprint ed.), 1:398–99Google Scholar.

50 1 Eliz. I, c.6.

51 D.N.B., sub Sir Edward Coke; Lord Cromwell's Case, 20 Eliz. I, 4 Coke's Reports, pp. 12-13.

52 Siebert, , Freedom of the Press In England, p. 119Google Scholar. See also Somerset Assize Orders, 1629-1640, no. 56, for an instance of Sir Thomas Richardson, CJKB, allowing truth as a defence in a slander case.

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60 Holdsworth, , History of English taw, 9:335Google Scholar; see also Carr, , “English Law of Defamation,” pp. 392–93Google Scholar.

61 Ancient Roman Statutes, ed., Johnson, A.C.et al. (Austin, Texas, 1961). p. 11Google Scholar: The Twelve Tables, table VIII.

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71 Hawarde, , Reportes, p. 22 ff.Google Scholar

72 Barnes, Thomas O., “Star Chamber Mythology,” 5:34Google Scholar. The Court of Star Chamber was also charged with enforcing certain royal proclamations, but this represented only a small part of its business.

73 Hudson, , Treatise, pp. 100104Google Scholar; A Catalogue of the Lansdowne Manuscripts In the British Museum (London, 1819), p. 152Google Scholar.

74 Hudson, , Treatise, pp. 100104Google Scholar.

75 Coke, , Reports, fos. 123–26Google Scholar; Hawarde, , Reportes, p. 222Google Scholar.

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79 Edwardes vs. Wootton et al., Hawarde, , Reportes, pp. 344–46Google Scholar. Coke went a step further and argued that the offence was also indictable at common law (12 Reports, pp. 35-36).

80 Russell, , The Crisis of Parliaments, p. 320Google Scholar. In the case deLibellis famosis, Coke had urged the judges to sentence the defendant Lewis Pickering of Northamptonshire to have his ears cut off even though Pickering was a gentleman. But in the case of Taylor vs. Cowarne (PRO, STAC 8/285/27), also known as the case of the Three Aldermen of Gloucester (1608), the judges spared the two defendants from loss of their ears “for that they were gentlemen igeniouselye borne and bredde [and] very younge. …” (Hawarde, , Reportes, p. 373Google Scholar.)

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86 Attorney General vs. Hackett, PRO, STAC 8/6/10.

87 Attorney General vs. More, PRO STAC 8/32/20.

88 Attorney General vs. Pemlie (1607), Hawarde, , Reportes, pp. 341, 343Google Scholar. Note that this benevolence was not voted by Parliament. The king could get nothing out of the Parliament of 1614 and had been resorting to extra-parliamentary taxation for years.

89 For examples in addition to those cited supra, see Brit. Lib., Harley MSS. 2143, fos. 13v, 31 v, and 16; PRO, SP 12/99/53, SP 12/12/51, SP 12/170/48; Calendar of Assize Records: Hertfordshire Indictments, James I, ed. Cockburn, J.S. (London, 1975), no. 27Google Scholar; Calendar of Assize Records: Sussex Indictments, James I, ed. Cockburn, J.S. (London, 1975), nos. 1-2Google Scholar.

90 Rushworth, , Historical Collections, I, appendix, pp. 18-28, 30Google Scholar; D.N.B., sub John Selden (1584-1654) et William Strode (159?-1645). Professor Louis Knafla tells me that many common lawyers were reading civil law texts by 1620 (personal communication).

91 An American lawyer, writing in 1902, said that attempting to demonstrate the truth of defamatory words was still considered to be “odious” (Courtney, J.C., “Absurdities of the Law of Slander and Libel,” American Law Review, 36 [1902]:552564)Google Scholar.

92 Harding, , A Social History of English Law, pp. 8081Google Scholar. For an example see Somerset Assize Orders, 1629-1640, no. 59.

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96 4 Coke's Reports, pp. 12-13.