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The Origins of the Doctrine of Sedition*

Published online by Cambridge University Press:  11 July 2014

Roger B. Manning
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Extract

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
Information
Albion , Volume 12 , Issue 2 , Summer 1980 , pp. 99 - 121
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

** Bacon, Francis, “Of Seditions and Troubles,” The Works of Francis Bacon, ed. Spedding, James, et. al., 14 vols. (London, 1857–1874), 6: 406–09Google Scholar. Bodin, Jean, The Six Bookes of the Commonwealth, ed., McRae, K.D. (Cambridge, Mass., 1962), pp. 543–44CrossRefGoogle Scholar.

1 26 Henry VIII, c. 13.

2 Oxford English Dictionary, sub (edition (hereafter cited as O.E.D.).

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.

5 O.E.D., sub sedition; Stephen's Commentaries on the Laws of England, ed. Warmington, L.C. (21st ed.; London, 1950), 4:141Google Scholar.

6 16 Carl. I, c. 10. See also Phillips, H.E.I., “The Last Years of the Court of Star Chamber, 1630-41,” Transactions of the Royal Historical Society, 4th series, 21 (1938): 103–31CrossRefGoogle Scholar.

7 Eisenstein, Elizabeth L., “The Advent of Printing and the Protestant Revolt: A New Approach to the Disruption of Western Christendom,” Transition and Revolution: Problems and Issues of European Renaissance and Reformation History, ed. Kingdon, Robert M. (Minneapolis, 1974), pp. 235–270Google Scholar.

8 P[ublic] R[ecord] O[ffice], Proceedings of the Court of Star Chamber, STAC 4/6/67, Lovette vs. Weston.

9 A Letter Concerning Toleration, ed. Cough, J.W. (Oxford, 1966), p. 158ffGoogle Scholar.

10 Russell, Conrad, The Crisis of Parliaments: English History, 1509-1660 (London, 1971), p. 312Google Scholar.

11 Hawarde, John, Les Reportes del Cases in Camera Stellata, 1593-1609, ed. Baildon, W.P. (1894), pp. 176–77Google Scholar.

12 PRO, SP 10/8/33, printed in England under the Reigns of Edward VI and Mary, ed. Tytler, P.F., 2 vols (London, 1839), 1: 185–89Google Scholar.

13 William Lambarde and Local Government: His “Ephemeris” and Twenty-nine Charges to Juries and Commissions, ed. Read, Conyers (Ithaca, N.Y., 1962), p. 96Google Scholar.

14 The Works of Sir Francis Bacon, ed. Spedding, Jameset al., 15 vols. (London, 1861), 6: 408–409Google Scholar.

15 sThe French ambassador at this time wrote: “It is a strange thing, the hatred in which this king is held, in free speaking, cartoons, defamatory libels-the ordinary precursors of civil war” (“A Proclamation against excesse of Lavish and Licentious Speech of Matters of State,” 24 December 1620, Stuart Royal Proclamations, Vol. I: Royal Proclamations of King James I, 1603-1625, ed. Larkin, J.F. and Hughes, P.J. [Oxford, 1973], no. 208n.Google Scholar)

16 Elton, G.R., The Tudor Constitution (Cambridge, 1960), pp. 59–60Google Scholar; Bellamy, J.G., The Law of Treason in England in the Later Middle Ages (Cambridge, 1970), pp. 116-19, 123CrossRefGoogle Scholar. Meekings, C.A.F., in his article “Thomas Kerver's Case, 1444,” English Historical Review, 90 (1975): 331–346CrossRefGoogle Scholar, disputes some of the evidence that Professor Bellamy uses. The first, or King's Bench trial of Kerver was quashed because the jury failed to convict Kerver of attempting to persuade others to murder the king. The second or general commission of oyer and terminer trial made this a specific count in the indictment and a conviction was obtained. The point at issue here is whether the Treasons Act of 1352 comprehended compassing the death of the king through spoken words only as an overt act, or whether the spoken words had to be construed as such, producing ‘constructive’ treason. It is a fine point.

17 Stephen's Commentaries, 4: 127–128Google Scholar.

18 Emmison, F.G., Elizabethan Life: Disorder, Mainly from Essex Sessions and Assize Records (Chelmsford, Essex Record Office Publications, no. 56, 1970), p. 39Google Scholar.

19 Mackie, J.D., The Earlier Tudors, 1485-1558 (Oxford, 1952), p. 75Google Scholar.

20 The Fifty-third Annual Report of the Deputy Keeper of the Public Records (London, 1892), appendix II, pp. 32–34Google Scholar.

21 Williams, W. L., “A Welsh Insurrection,” Y Cymmrodor, 16 (1902): 1–93Google Scholar. Rhys, it is true, previously had drawn his dagger on Henry's representative in Wales, Lord Ferrar, whom his wife and servants subsequently beseiged at Carmarthen Castle, for which actions Rhys was sentenced in Star Chamber to pay a fine for the crime of rebellion.

22 Elton, G.R., Policy and Police: The Enforcement of the Reformation in the Age of Thomas Cromwell (Cambridge, 1972), p. 275Google Scholar.

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. 61–63Google 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.

28 Furnivall, F.J., Ballads from Manuscripts, vol. I: Ballads on the Condition of England in Henry VIII's and Edward VI's Reigns (London, 1868-1872), pp. 476–77Google Scholar.

29 Stow, John, Annates, or a General Chronicle of England (London, 1631), p. 582Google Scholar.

30 Abp. Holgate, president of the Council in the North to Cromwell, Dec. 19, 1537, Brit. Lib., Cotton MSS., Caligula B. III, fos. 157-58.

31 Hall, Edward, Vnion of the two Noble and Illustre Famelies of Lancaster and Yorke, ed. Ellis, Henry (London, 1809, reprinted New York, 1965), p. 823Google Scholar (hereafter cited as Hall's Chronicle); see also Stowe, , Annates, pp. 573–74Google Scholar.

32 Beer, Barrett L., “London and the Rebellions of 1548-49,” Journal of British Studies, 12 (1972): 29Google Scholar.

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]: 85–103CrossRefGoogle 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.”

34 Holdsworth, W.S.. A History of English Law, 16 vols. (London, 1924), 1: 574–76Google Scholar.

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. 4–5Google 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): 35–36Google 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.

37 Ibid.

38 Elton, , Policy and Police, pp. 297–98Google Scholar.

39 Tudor Royal Proclamations, 3: 82-83, 143Google Scholar.

40 Hist. MSS. Comm., Calendar of the Manuscripts of the Marquis of Salisbury, 18 vols. (Dublin, 1906), 2:132, 156Google Scholar; Calendar of State Papers, Domestic Series of the Reign of Elizabeth, 1601-1603, ed. Green, M.A.E. (London, 1870), p. 88Google Scholar.

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.

42 Boynton, Lindsay, “Martial Law and the Petition of Right,” English Historical Review, 89 (1964): 255–84CrossRefGoogle Scholar.

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. xxiv–xxvGoogle 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.

45 Hawarde, John, Les Reportes del Cases in Camera Stellata, 1593 to 1609, ed. Baildon, W.P. (1894), pp. 187–88Google Scholar. See also Seibert, F. S., Freedom of the Press in England, 1476-1776: The Rise and Decline of Government Control (Urbana, Illinois, 1965), pp. 116–17Google Scholar.

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. 80–81Google 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. 80–81Google 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.

53 Helmholz, R.H., “Canonical Defamation in Medieval England,” Journal of Legal History, 15 (1971): 264–67Google Scholar; Holdsworth, , History of English Law, 8:335Google Scholar.

54 Helmholz, , “Canonical Defamation,” p. 260Google Scholar.

55 Manning, Roger B., “The Crisis of Episcopal Authority During the Reign of Elizabeth I,” Journal of British Studies, 11 (1971): pp. 11ffCrossRefGoogle Scholar.

56 Dalton, Michael, The Covntrey Justice, Containing the Practice of the Justices of the Peace out of their Sessions (London, 1622, repr. 1972), p. 173Google Scholar.

57 Ibid.; Hudson, William, A Treatise on the Court of Star Chamber, in Collectanae Juridice, comp. Francis Hargrave, 2 vols. (London, 1792), 2:100–104Google Scholar.

58 Fifoot, C.H.S., History and Sources of the Common Law: Tort and Contract (London. 1949), p. 131Google Scholar; Carr, , “English Law of Defamation,” pp. 391–93Google Scholar; Holdsworth, , History of English Law, 8:335Google Scholar.

59 Barnes, Thomas O., “Star Chamber Mythology,” American Journal of Legal History. 5 (1961):1–11CrossRefGoogle Scholar.

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.

62 SirSyme, Ronald, The Roman Revolution (Oxford, 1939), pp. 149, 476–89Google Scholar.

63 Tacitus, Cornelius, Annals (London, 1888), book I, chapter 16f.Google Scholar, and Histories (Cambridge, Mass., 1925), book I, chapter 18Google Scholar.

64 Rushworth, John, Historical Collections, 8 vols. (London, 1720), 1, appendix, p. 30Google Scholar.

65 The Theodosian Code and Novels and Sirmondian Constitutions, trans. Pharr, Clyde (Princeton, 1952), 9.34.1–4Google Scholar.

66 Hawarde, , Reportes, p. 372Google Scholar.

67 Ancient Roman Statues, p. 182: Permanent Edict of Urban Praetor, ca. 129 A.D., p. 265; The Institutes of Justininian, trans. Moyle, J.B. (5th ed.; Oxford, 1913), book IV, title IVGoogle Scholar; see also Schulz, Fritz, Classical Roman Law (Oxford, 1951), pp. 593–95Google Scholar.

68 Attorney General vs. Pickeringe, 14 May 1605, Hawarde, , Reportes, p. 222ff.Google Scholar

69 5 Reports (London, 1738), fos. 125–26Google ScholarPubMed.

70 Hudson, , Treatise, pp. 100–104Google Scholar.

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

72 Barnes, Thomas O., “Star Chamber Mythology,” 5:3–4Google 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. 100–104Google Scholar; A Catalogue of the Lansdowne Manuscripts In the British Museum (London, 1819), p. 152Google Scholar.

74 Hudson, , Treatise, pp. 100–104Google Scholar.

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

76 Hudson, , Treatise, p. 100–104Google Scholar.

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

78 Hudson, , Treatise, pp. 100–104Google Scholar.

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.)

81 Siebert, , Freedom of the Press in England, 1476-1776, p. 120Google Scholar.

82 Hudson, , Treatise, pp. 100–104Google Scholar.

83 Attorney General vs. Boothes, Hawarde, , Reportes, pp. 64–66Google Scholar.

84 Attorney General vs. Pounde, Hawarde, , Reportes, pp. 182–86Google Scholar. Slander of justice had been punished by the Court of Star Chamber before Coke's tenure of the attorney-generalship. See “Star Chamber Reports,” Brit. Lib., Harley MSS. 2143, fos. 1, 4, 31.

85 Attorney General vs. Fitzjames, PRO, STAC 8/5/16.

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]:552–564)Google Scholar.

92 Harding, , A Social History of English Law, pp. 80–81Google Scholar. For an example see Somerset Assize Orders, 1629-1640, no. 59.

93 A Complete Collection of State Trials to 1783; Continued to the Present Time, ed. Howell, T.B., 33 vols, (second edition; London, 1816–1826), 114:1125Google Scholar.

94 32 Geo. III, c. 60, printed in Carl Stephenson and Marcham, F.O., Sources of English Constitutional History, 2 vols. (New York, 1962), 2:667Google Scholar.

95 Lovell, Colin Rhys, English Constitutional and Legal History, 2 vols. (New York, 1962), 2:667Google Scholar.

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