The Development of the Law of Seditious Libel and the Control of the Press

Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 1985 The Development of the Law of Seditious Libel and the Control of the Press Philip A. Hamburger Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Constitutional Law Commons Recommended Citation Philip A. Hamburger, The Development of the Law of Seditious Libel and the Control of the Press, 37 STAN. L. REV. 661 (1985). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/656 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. The Development of the Law of Seditious Libel and the Control of the Press Philip Hamburger* CONTENTS INTRODUCTION ............................................ 662 I. THE OPTIONS ........................................ 666 A. Treason .......................................... 666 B. Scandalum Magnatum ............................. 668 C. H eresy ........................................... 669 D . Libel ............................................ 669 E. Felony Statutes .................................... 670 F. Licensing ......................................... 671 II. PROSECUTIONS UNDER THE LICENSING LAWS .......... 674 A. Licensing Under Royal Prerogative .................. 675 B. Licensing Under Ordinances and Statutes ............ 679 C. Statutory Licensing After the Restoration ............. 680 D. The Reemergence of Prerogative Licensing ............ 682 E. Statutory Licensing From 1685 ..................... 690 III. THE EARLY DEVELOPMENT OF THE LAW OF SEDITIOUS LIBEL: LIBEL OF MAGISTRATES ....................... 691 IV. THE LAW OF SEDITIOUS LIBEL, 1660-1695 ........... 697 * Associate Professor, University of Connecticut Law School. B.A., Princeton University, 1979; J.D., Yale Law School, 1982. In the course of writing this article, I have received very generous advice and encouragement from Professor Barbara A. Black of Columbia Law School, Professor Thomas A. Green of University of Michigan Law School, Professor Robert W. Gordon of Stanford Law School, Professor Stanley N. Katz of Princeton University, Professor John Langbein of University of Chicago Law School, and Professor Lawrence Stone of Princeton University. Professor Geoffrey Holmes and Paul Hyland, both of the University of Lancaster, England, kindly drew my attention to certain sources. I wish to thank all of these persons for their generous assistance. I also should like to thank the Trustees of the British Library, the Controller of Her Majesty's Stationary Office, and Mr. Stephen Parks, Curator of the Osborn Col- lection at Yale University, for permission to quote from manuscripts in their custody. 662 STANFORD LA W REVIEW [Vol. 37:661 A. The Trials ....................................... 697 B. Elements of the Offense ............................. 700 1. Defamatory Content ............................ 700 2. Publication ................................... 702 3. State of M ind ................................. 703 C. Two Extraordinary Trials .......................... 708 V. THE FAILURE OF THE LAWS OF LICENSING AND TREASON ............................................ 714 A. The Demise of Licensing ........................... 714 B. Prosecutionsfor Treason ........................... 717 C. The Treason Trials Act ............................ 722 VI. THE DEVELOPMENT OF THE EIGHTEENTH CENTURY DOCTRINE OF SEDITIOUS LIBEL ....................... 725 A. William III's Reign From 1696 .................... 726 B. Queen Anne's "Moderate" Tory Ministry ............ 734 C. Queen Anne's Whig Ministry ....................... 743 D. Queen Anne's Second Tory Ministry ................. 748 E. George I's Whig Ministry .......................... 751 F. The Acceptance of Holt's and His Colleagues' Interpretation of the Law of Seditious Libel ........... 753 CONCLUSION .............................................. 758 APPENDIX ................................................. 762 INTRODUCTION This article presents a new account of the development of the law of seditious libel from the late sixteenth century to the early eighteenth. It also outlines a new version of the relationship between the government and the press during that period. The article argues that it was the gradual erosion, during the late sixteenth and seventeenth centuries, of the legal foundations of the government's policies toward the press that eventually made necessary a new policy based on the law of libel. In the mid- sixteenth century, the Crown possessed a wide variety of means for dealing with the printed press, including the laws of treason, Scandalum Magnatum, heresy, and licensing. Legal restraints and public opinion, however, gradually forced the Crown to abandon one method after another until in the late seventeenth century it had great difficulty finding a law with which it could defend itself against printed criticism. The sole remaining law that the Crown could rely upon for prosecuting the printed press was one that during the previous century had not been considered suitable for February 1985] SEDITIOUS LIBEL 66-3 that purpose. It was, however, the Crown's only alternative, and, after doctrinal adjustments, it became the chief means of prosecuting the printed press in the eighteenth century. This was the law of seditious libel. The conclusions arrived at in this article differ significantly from those found in the well-known writings of Sir James Fitzjames Stephen, Sir William Holdsworth, and Frederick S. Sie- bert.' These historians believed that the use and doctrine of the law of seditious libel in the eighteenth century were not significantly different from what they had been in the seventeenth. Ste- phen, Holdsworth, and Siebert identified many seventeenth century seditious libel trials and assumed that the law of seditious libel was, in the seventeenth century as in the eighteenth, an im- portant instrument used by the Crown to restrain and control the printed press.2 This article will show that prior to the eighteenth century the law of seditious libel was a relatively insignificant means of restraining the printed press and was the basis of a relatively small number of prosecutions. It will be argued that the law of seditious libel was heavily relied upon and regularly used against the printed press only after other means of restraining the press, such as licensing and treason, became unusable in the mid-1690s, and that the severe doctrine of seditious libel enunci- ated in eighteenth century press prosecutions developed only around 1700. The misinterpretation of these developments, perpetuated by Stephen and others, had its origin in confusion among lawyers and historians about the seventeenth century meaning and use of the word "libel." Although it was a technical, legal term for a written defamation as defined and prohibited at common law, it was also a generic word for any pamphlet or small book, regard- less of whether its content was defamatoryA Thus, when a seventeenth century judge condemned a seditious libel, it was not always clear what he meant. He may have meant that he was ap- plying the common law to punish a written defamation that, be- cause it defamed an official, had a seditious effect. Alternatively, he may have meant that he was dealing with an antigovernment 1. 2J. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 298-395 (1883); 8 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 340-41 (1937); F. SIEBERT, FREEDOM OF THE PRESS IN ENGLAND, 1476-1776 (1952). 2. 2J. STEPHEN, supra note 1, at 309-15; 8 W. HOLDSWORTH, supra note 1, at 340; F. SIEBERT, supra note 1, at 269. 3. 6 OXFORD ENGLISH DICTIONARY 236 (1961). 664 STANFORD LAW REVIEW [Vol. 37:661 pamphlet, without specifying the law being used against it. Thus, in attempting to reconstruct the law that prohibited seditious written defamations, one cannot indiscriminately rely on all trials in which a seditious libel was said to have been punished. That was the mistake made by Stephen, Holdsworth, Siebert, and other historians who, in examining the multitude of seventeenth century trials that punished "seditious libels," assumed that all such trials involved the predecessor of the common law offense that they referred to with that phrase. This error led them to conclude that the law of seditious libel was a very tradi- tional method of control and that in the seventeenth century, as in more recent periods, prosecutions of the printed press were predominantly for violations of that law.4 To illustrate their point of view, they pointed to the numerous seventeenth century trials that punished what were referred to as "seditious libels," even though, in fact, many of these trials were for violations of the licensing laws. 5 Stephen and the others misunderstood not only the law of seditious libel but also the entire relationship between the government and the press. They assumed that in the seventeenth century, a period in which the licensing laws were in effect and enforced, the law of seditious libel was also used regularly against printed material. They therefore failed to notice that, in response to ever changing legal and political circumstances, the Crown relied at different times on different laws to restrain the press and that

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