11
Dangerous Speech from Hanoverian to Modern England
Undutiful and offensive language still resounded in eighteenth-century England, within the dominant political culture of politeness and loyalism. A subdued seditious grumbling could be heard in a hundred streets and alehouses, rising to vociferous contention in moments of crisis. The noise came from all sectors, including the rougher end of the so-called public sphere. Although the English came to pride themselves as a polite and respectable people, there were many among them given to uncouth and seditious utterance.1
The subjects of the Hanoverian monarchs could be as outspoken as their Tudor and Stuart predecessors, as prone as ever to offences of the tongue. Larrikin irreverence, malicious jesting, conversational bravado, and alcohol-tinged obstreperousness slipped easily towards sedition, with sometimes alarming consequences. Some among the commonalty regarded the taunting of authority as the birthright of any Englishman, while Whigs in particular regarded ‘freedom of speech’ as the bastion of English liberty. There could be ‘no such thing as public liberty, without freedom of speech, which is the right of every man’, wrote ‘Cato’ in The London Journal in 1722. ‘Without freedom of speech there can be no such thing as liberty,’ repeated ‘Cato Redivivus’ in 1766.2 By ‘freedom of speech’ they meant freedom of writing, but the phrase invoked both an entitlement and a slogan. It echoed the 1689 Bill of Rights, which protected ‘freedom of speech’ in parliament, now generalized to the nation at large.
For the most part, eighteenth- and nineteenth-century governments tolerated or dismissed abusive remarks, or inflicted no more than token punishment on speakers of scandal and sedition. From time to time, however, regimes felt threatened, and used old law against new offenders. Jacobite scares in the early Hanoverian period, radical enthusiasms in the age of the French Revolution, and plebeian outbursts after the Napoleonic wars produced the greatest concentration of cases. This chapter follows the history of dangerous and seditious speech beyond the Stuart era, to review the voices of the disaffected and the varying responses of the state.
Mainstream legal opinion in Hanoverian England was disinclined to construe disloyal or seditious speech as treason. The statute of 1352 still applied, making it treason to compass or imagine the king’s death, but most jurists denied that words alone could be treasonable. ‘The great question is, whether words only spoken can amount to an overt act of compassing the king’s death,’ wrote the legal scholar William Hawkins, but the question was already answered in the negative. In his influential Treatise of the Pleas of the Crown (1716–21) Hawkins sided with the judges in Pyne’s case of 1628. (He also rebuked Sir Edward Coke, who in his third Institutes took one view, but ‘was clearly of another opinion when he was Chief Justice’.) Neither ‘deliberate words’ (such as, if I meet the king I will kill him) or ‘conditional words’ (such as, if the king arrests me I will stab him) could be treasonable, wrote Hawkins, unless they were associated with an overt act such as conspiracy or insurrection. Nor was it treason to question the king’s title to the throne, unless it could be shown that ‘the speaker had a design against the king’s person’. Such words might be scandalous, wicked, or unwary, and subject to law as misdemeanours, but by themselves they would not imperil a person’s life.3
Hawkins did not discuss ‘sedition’, which remained poorly defined in English law, but his cautious understanding of ‘treason’ did not leave the state defenceless. ‘Words spoken… in contempt and disgrace of the king’ remained ‘highly criminal’ and ‘highly punishable’ under the Hanoverian monarchs. Subjects who spoke contemptuously of the king, ‘as by cursing him, or giving out that he wants wisdom, valour or steadiness’, or whose words served to ‘lessen [the king] in the esteem of his subjects and weaken his government, or raise jealousies between him and his people’, still faced judicial punishment. For these misdemeanours they were ‘punishable with fine and imprisonment, and sometimes with the pillory, by the discretion of the judges, upon consideration of all the circumstances of the case’.4
Equally cautious was Sir Michael Foster, whose Discourses upon a few Branches of the Crown Law appeared in 1762. Foster too reviewed ‘the diversity of opinions’ on the subject of treasonable words and concluded yet again that ‘loose words not relative to any act or design are not overt acts of treason’. Such words were, at worst ‘an high misprision’ or high misdemeanour, for ‘words are transient and fleeting as the wind, the poison they scatter is at the worst confined to a narrow circle of a few hearers. They are frequently the effect of a sudden transport, easily misunderstood, and often misreported.’ Far from encouraging the state to police its subjects’ speeches, Foster warned of ‘the extreme danger of multiplying treasons upon slight occasions’.5
William Blackstone, solicitor general to George III, in his Commentaries on the Laws of England (1765–9), also separated ‘mere words’ from ‘the highest civil crime’ of treason. Though ‘formerly matter of doubt’, it was now
clearly to be agreed, that by the statute of Edward III, words spoken amount only to a high misdemeanour, and no treason. For they may be spoken in heat, without any intention, or be mistaken, perverted, or mis-remembered by the hearers… As therefore there can be nothing more equivocal and ambiguous than words, it would indeed be unreasonable to make them amount to high treason.
The judgment in Pyne’s case clearly shaped these ideas.6 If people spoke ill of their monarchs, the law might subject them to lesser sanctions, or ignore them altogether. An unknowable number of seditious speakers never came to the attention of magistrates, but were dealt with informally by disapproving neighbours.
German George
In 1714 the preferment of George of Hanover, a German princeling, over the claims of the exiled James Stuart and other Catholic contenders imposed novel strains on English political culture. The Whig faction became dominant, the Tories were in disarray, and popular politics became divided and contentious. Jacobite disturbances broke out in many parts of England, often triggered by royal or Stuart anniversaries and stimulated by partisan health-drinking. Attachments and animosities were signalled through the deployment of emblems: white roses (for the Pretender), turnips (to mock German George), and horns (for the royal cuckold). Cries in the streets included ‘away with the Whigs’ and ‘No King George but a Stuart’, to be answered by ‘King George forever, no warming-pan bastard’. Similar sentiments appeared on libels, handbills, and inscriptions chalked on walls.
Dozens of subjects were cited or indicted for their scandalous or seditious utterances. One Middlesex man was indicted for offering ‘to lay fifty guineas that the king did not reign twelve months’. Another greeted the Hanoverian accession by remarking ‘King George, King Turd’. A yeoman from Kent declared that his majesty was ‘not the lord’s appointed king’ but was ‘brought in by a parcel of bogtrotters’. A Cornish man offered to ‘send the cuckold [back] to Hanover’. The disturbances seemed to have reflected some genuine enthusiasm for the Pretender along with insolent taunting of the party now in power. High-level Jacobite rebels and conspirators faced execution for real treason, but most of those caught ‘drinking the pretender’s health’, ‘cursing the [Hanoverian] king’, or ‘speaking seditious and scandalous words’ against his majesty faced the lesser penalties of a misdemeanour. If convicted, they were bound over for their future good behaviour, made to stand in the pillory, or charged a small fine. A few served six months in prison. The Staffordshire feltmaker Thomas Birkes, who opined ‘that King James will be our king yet’, was whipped and fined one pound. The Tyneside labourer John Sheerer, who upheld the Pretender’s claims, was fined one shilling and sent to prison. The Lancashire shoemaker Jeffrey Battersby, who said that ‘King George has no more right to the crown than you or I’, and hoped for ‘flourishing times’ under King James, was acquitted.7 William Wide was pilloried and imprisoned in 1715 for saying ‘God damn King George, he has no right to the throne’. John Bournois was found guilty of calling King George a usurper and upholding James III as the ‘right and lawful king of England’, but his sentence was respited. The Londoner John Humfreys was fined 20 marks and sentenced to six months in prison for a similar offence.8
The judicial response to popular seditious speech was generally measured and restrained. As many as 80 per cent of those cited for seditious words in early Hanoverian London were never brought to trial, and 40 per cent of those prosecuted were acquitted. Overall conviction rates for seditious speech in early Georgian England were little more than 25 per cent.9 The age of incarceration or mutilation for speaking seditious words seemed to be over.
Juries were notoriously unreliable, and opinion on the street could be fickle. Robert Harrison of St Botolph’s Aldgate was found guilty in 1718 of shouting out, late at night, ‘King James III for ever, who dare oppose him, God damn all his foes’. For these seditious words he was sentenced to stand in the pillory, to pay 20 marks, and to suffer six months’ imprisonment. When Harrison appeared in public, a London mob ‘did generally seem to countenance the prisoner, giving him small money and huzzaing him’, so that officers feared he might be rescued. Angry spectators ‘damned the court and the jury who condemned the said Harrison’.10
Other offenders suffered heavier though less public punishment. Robert Constable, one of the Proctors of the Arches Court of Canterbury, was fined £200 and imprisoned for six months in 1718 for his ‘treasonable and seditious words against his majesty’, though the actual words are not recorded.11 More details survive concerning Margaret Hicks, a Middlesex woman, who cursed the king in 1719. When a neighbour told her that ‘she had no business to meddle with King George’, she replied: ‘God damn King George and you too.’ Warned that ‘she might be hanged for it’, Margaret Hicks answered that ‘she had rather be hanged for that than anything else; if she could have his heart’s blood she’d stick him’ with her knife, and that ‘the first time King George came by the door she would stick him’. Found guilty at the Old Bailey sessions, she was fined 40s. and sentenced to six months’ imprisonment.12 Also tried in 1719 for saying ‘Huzza for the Pretender, as he had but one life to lose, he would lose it for the Pretender’, Peter Thorell was acquitted on the grounds of it being a malicious prosecution.13 Verbally compassing the king’s death was no longer a hanging offence, though popular culture preserved memories of capital punishments for treasonous speech.
Quarter sessions and assizes still dealt occasionally with speakers of ‘treasonable and seditious words against the king and government’, but the political and judicial establishment seemed to share the view of ‘Aristarchus’ in The Weekly Journal in 1721 that the spoken word was a relatively minor threat. Unlike ‘seditious writings, which are undertaken coolly and deliberately … words are often spoken passionately, inconsiderately, wine and opposition making men often drop expressions contrary to their real sentiments’.14
Jack Pudding King
Scandalous remarks about the Hanoverian royal family and expressions of support for the Stuart Pretender flared up from time to time in the reign of George II (1727–60). But the few cases that came to light were not especially shocking. The evidence points to pockets of disaffection rather than a regime in trouble. Seditious words had not disappeared from the political landscape, nor from the common vocabulary, but they did not reflect deep ideological divisions. The courts generally treated them as mild misdemeanours, affronts to good order, or regrettable lapses of taste, and often decided not to prosecute at all.
The early years of George II saw few recorded incidents. In perhaps the most serious, John Spencer was convicted in London in February 1728 ‘for uttering opprobrious and seditious words against his majesty’, for which he had to stand one hour in the pillory and suffer twelve months in gaol.15
Dining at a London victualling house in May 1729, the lawyer William Lambe remarked of Frederick, Prince of Wales, ‘God damn him, he’s a fool, and looks like a fool’. Several fellow diners ‘took particular note of this discourse’, and one thought it his duty to report it to the Council, which took the matter no further.16 The remarks may have been scandalous, but they were not worth troubling the law. They may even have echoed court opinion, since Prince Frederick had few friends in the royal family.
The Jacobite menace was potentially more serious, but for the moment it appeared to be a spent force. The government took note of Jacobite expressions when they were reported, but was not always able to retaliate. The authorities took no action, for example, against the unknown celebrant at Gainsborough races in August 1730 who ‘threw up his cap and cried out, long live King James’.17 In another incident from Lincolnshire that month, drinkers at the Royal Oak at Gainsborough heard Captain George Gumley say ‘that Walpole was a tool to that damned son of a whore, King George’. A fellow drinker ‘told him to not say so’, but Gumley was unstoppable. He declared ‘that King George was not the lawful king, that [neither] he nor anyone else could believe that King George was the right king of England, [and] that if he had it in his power to raise fifty thousand men, he would soon be as good a king of England as he was’. This time there was no shortage of witnesses, and Gumley was cited for his words at the Lincoln assize.18 Another loud-mouthed Jacobite was indicted at Shrewsbury in 1738 for seditosa et malitosa verba—hateful and seditious words. James Dawes told loyal supporters of George II, ‘Damn you and your king. My king [James] shall be king when you and your king are gone to the devil.’19
Drink rather than disloyalty seems to have been at the root of Thomas Dixon’s ‘seditious words’ at an inn near Carlisle in February 1744. Dixon, an attorney’s clerk, was much in liquor when he fell into an argument with a recruiting sergeant. When the sergeant cursed the Spaniards (with whom England was at war), Dixon called him ‘a cowardly fellow’ and offered ‘a health to the Spaniards’. Uproar ensued, and Dixon found himself cited in King’s Bench. Petitioning for clemency, he claimed not to remember the offensive words, blamed them on alcohol, and declared them ‘contrary to his inclinations’. Neighbours attested that he was neither disloyal nor disaffected, and he was allowed to go free. The case served as a warning that walls had ears, that jesting or drunken speech could bring trouble. But it also demonstrated a reluctance to criminalize words that might just as well have been ignored.20
Jacobite sentiment emerged again at an alehouse at Winterbourne, Gloucestershire, in April 1744, when John Crowe (or Crane) declared: ‘I wish the Pretender and all his army of men was in Frencham common, I would be the first man that should help him.’ Report of these words was relayed up the chain of authority, from the village constable to the Duke of Newcastle in London. They were remarkably similar to Elizabethan brags in favour of Spanish forces, and early nineteenth-century assertions of support for Napoleon. Though they could be construed as treason, such words were more probably expressions of anger and frustration, and the authorities treated them with appropriate contempt. ‘For speaking seditious words against his majesty’, the offender was fined a mere shilling and stood in the pillory an hour.21
In 1745, the year of Jacobite rebellion, metropolitan magistrates recorded a spate of seditious commentary. Daniel Smith, an Irish labourer of the parish of St Giles in the Fields, was held in Newgate and then sent to trial for shouting ‘God bless King James, King James forever, King James forever’.22 Gabriell Service, a labourer of St Clement Danes, was likewise apprehended in 1745 for saying ‘Damn King George’. Witnesses heard Service ranting at the sign of the Crooked Billet in Witch Street, and one of them recalled his remarks from a few months earlier, ‘Damn King George, Damn you Jack Pudding King’, and his threat ‘that if he had the shaving of King George he would cut his throat’. He was also alleged to have declared that ‘the king is a rascal, a rogue, and a jack pudding, and ought to be shit on’.23 A ‘jack pudding’ was a jester or buffoon, but use of this term against the king did not necessarily make the speaker a Jacobite.
Comparable remarks could be heard after the Jacobite threat had passed, as in 1747 when the mariner John Clapison of Hull was indicted for saying ‘damn the king and the Duke of Cumberland’.24 Ann Dinmore of Surrey spoke similar words that year against the king and his nephew.25 Two Oxford students, who had already been punished ‘in an academical way’ for speaking treasonable words, were sentenced in King’s Bench in 1749 to be fined and imprisoned, ‘and to go round immediately to all the courts in Westminster Hall, with a paper on their foreheads denoting their crime’.26
In one more case from George II’s era, Charles Farrel was indicted in June 1756 for seditious words against the king. A Catholic and a Jacobite, and also seriously drunk, Farrel disturbed the company in a public house at Houndsditch by declaring King George ‘a thief’, damning the royal family, and saying ‘he’d shoot his present majesty on the throne, and that he’d destroy them all’. Found guilty of words that a previous century might have deemed treason, Farrel was merely lodged in Newgate until he found sureties for his good behaviour.27
The Birthright of an Englishman
The accession of George III in 1760 attracted no significant outbreaks of disaffection. The king was young and English born, with hopeful prospects. There is little evidence of either popular or principled hostility to the crown in the first thirty years of his reign. Magistrates of the 1760s could find nothing more startling to report than the words of a Middlesex man who said that the king was ‘a villain, a rogue, and never kept his word in anything’, and another who called King George ‘a whelp and a bastard’. According to legal analysts, it was ‘arrogant and undutiful behaviour’ to curse the king, or to give out ‘that he wants wisdom, valour, or steadiness’. It was seditious to drink ‘to the pious memory of a traitor’, or ‘in common and unadvised discourse’ to deny the king’s right to the crown. The law treated such statements as criminal contempts against the king’s person, which served to ‘lessen him in the esteem of his subjects… or raise jealousies between him and his people’. Prosecutors and judges would exercise their discretion, and juries would generally take an accommodating line.28
The publication of seditious writing always concerned the authorities, but, as for the spoken word, so long as it was not slanderous, people could say what they pleased. If commoners spoke ill of government, that was among the crosses that authority had to bear. Unlike ancien regime France, where people died for mauvais discours against the king,29 nobody in Hanoverian England went to the scaffold for speaking treason, nor did anyone convicted of seditious speech lose their ears. The middle decades of the eighteenth century give the impression of a secure and confident regime, facing a less polarized and less threatening popular politics. The records of central government, the press, the courts, and legal opinion, all indicate a relaxed and tolerant view of speech offences, and a general unwillingness to press such cases at law.
Everything changed in the 1790s. The revolution in France sent shock waves across Europe, reawakening the fear of sedition in Britain. The Hanoverian ruling class braced itself for assault, and sought to protect itself through policing and law. Rumours of plots against the government and scares of saboteurs and assassins created an atmosphere of panic. By 1792, year three of the revolution, the fear of invasion from France fuelled fears of domestic insurrection. Tom Paine’s Rights of Man sold 200,000 copies that year, and a goodly number were burnt. The Home Office received warning in November 1792 that soon ‘there would be no king and it would be worse than in France’. By early December the government was ‘prepared for the worst’.30 By February 1793 England and France were at war.
In the panic of 1792 rights and practices that had seemed long settled faced new challenges, amidst fears for the safety of the country and the regime. There would be heightened surveillance of extra-parliamentary politics, increased monitoring of potentially seditious meetings, and closer scrutiny of the press. Publicans and keepers of licensed premises felt pressure to report what people said. Radical associations such as the London Corresponding Society and the Sheffield Constitutional Society were denounced as fronts for the sans culottes. Industrial agitators, Irish nationalists, radical preachers, and enthusiasts for the revolution in France were imagined as parts of a many-headed monster. Government lawyers took a harder line on sedition, likening it to treason that threatened authority, the constitution, and the king.31
An anxious proclamation of May 1792 proscribed all ‘wicked and seditious writings… printed, published, and industriously dispersed’ that might lead to tumults and disorders. Authors and printers could be prosecuted for their dangerous inflammatory words. The immediate target was written text rather than verbal utterance, but political orators also found themselves in trouble as the Pitt administration took steps against sedition. Mindful of England’s constitutional tradition, the government took pains to assert that its new punitive measures were designed to protect the ‘rights and liberties, both religious and civil’, of the king’s ‘faithful and loving subjects’. The crackdown on sedition was ‘for the preservation of the peace and happiness’ of the kingdom.32
There began a decade of harassment of authors and publishers, which extended to speakers of dangerous words. The government launched aggressive legal action against radical and revolutionary voices, not only targeting the products of the press. Speech that had seemed innocuous enough in the early part of George III’s reign was construed as dangerous and criminal in the era of revolution. The danger, so the government said, lay not only in particular forms of words, but in the context and circumstance of their expression. Lord Kenyon claimed in court in 1793 that ‘the propriety of prosecuting for words of this sort depends a great deal upon the time and season at which those words were uttered’.33 To damn the government and call the king ‘a fool’ was impropriety ‘at any time, but especially at the present moment’, declared another crown counsel that year.34 To denigrate the monarchy when Louis XVI and Marie Antoinette had just been guillotined, or to uphold the French when revolutionary forces were poised to cross the Channel, would not only cause uproar in an alehouse or coffee shop but was now likely to enmesh the speaker in the complexities of the courts.
George III’s government considered suspending habeas corpus in November 1792, and the legal protection was formally removed between May 1794 and July 1795 and again from April 1798 to March 1801. Critical expression became riskier, and its consequences more severe. A series of highly publicized trials in 1793—of John Frost in May, William Winterbotham in July, and Thomas Briellat in December—brought seditious speech to wider public attention. Printed accounts of these trials broadcast the words in question and exposed the arguments of both sides. These were prosecutions for words spoken, not written, and they showed that the law was a double-edged weapon. The defendants suffered heavy custodial sentences, but their words were widely publicized and they took on the character of political martyrs.35 They were singled out as orators and activists, not casual speakers who overstepped their bounds.
John Frost, a radical lawyer and a member of the London Corresponding Society, returned from Paris in November 1792 and joined friends for dinner at the tavern above Percy’s coffee house in Marylebone. As he was leaving, someone downstairs asked him his opinion about affairs in France, and Frost replied: ‘I am for equality. I see no reason why any man should not be upon a footing with another, it is every man’s birthright.’ Pressed to comment further, he said there should be ‘no kings… no kings in this country’, adding ‘that the constitution of this realm was a bad one in having a king’. These words provoked an angry hissing among coffee-house patrons. Some threatened to kick him out, and someone else reported Frost’s words to the authorities.
In May 1793 John Frost was put on trial for
maliciously, turbulently and seditiously intending the peace and common tranquillity of our lord the king and of his kingdom, to disquiet, molest and disturb, and bring our most serene sovereign lord George III… into great hatred and contempt … and to alienate and withdraw the affection, fidelity and allegiance of his said majesty’s subjects from his said majesty.
Frost’s seditious words, said the prosecutor, were ‘an exceeding high misdemeanour’, verging on treason. They displayed ‘a seditious intention’ that ‘might be forerunner of seditious acts’.
Thomas Erskine, for the defence, made an impassioned speech denouncing the criminalization of casual conversation. What Englishman, he asked, would consent ‘to have his loosest and lightest words recorded and set in array against him in a court of justice?… If malignant spies were properly posted, scarcely a dinner would end without a duel and an indictment.’ But the words in question were well attested by witnesses, and the jury found Frost guilty. He was sentenced to be struck off the roll of attorneys, to be pilloried at Charing Cross for an hour, and then to spend six months in Newgate. It is said that he escaped the pillory when an angry crowd destroyed the platform, and the shameful sentence was remitted. Frost was eventually pardoned in 1813, but his professional life was ruined.36
More severely punished was William Winterbotham, a nonconformist preacher at Plymouth, who was tried for seditious words in July 1793. Informants testified that Winterbotham had declared in two sermons in November 1792 that he approved of the revolution in France, saying that it ‘opened the eyes of the people of England’. He called on his auditors to ‘stand forth in defence of your rights’, adding that ‘we have as much right to stand up as they did in France’. Finally, he opined that, if King George did not observe the laws, ‘he has no more right to the throne than the Stuarts had’. Found guilty of sedition by a special jury at the Exeter sessions, Winterbotham was fined £200 and sentenced to four years in prison.37
Thomas Briellat, a Middlesex pump-maker, was tried in December 1793 for speaking similar seditious words at a cheesemonger’s shop in Hackney and at a victualling house in Shoreditch. He was alleged to have said, among other dangerous utterances, that ‘there never will be any good times until all kings are abolished from the face of the earth’, that ‘the king had lived a lazy life for a long time’ and ‘ought to work for his living’, that ‘a reformation cannot be effected without a revolution’, and that he wished ‘the French would land one hundred thousand men in England to fight against the government party’. These were especially inflammatory words at a time when England and France were at war, and when many Londoners feared insurrection. Briellat’s defence counsel, like John Frost’s, attempted to appeal to the jury. ‘Gentlemen,’ he warned them, ‘there is not a word spoken by any of you in a butcher’s shop, or any other, but it may be carried to the office of these gentlemen … If you think the honest character of an Englishman is still to be preserved, if you think that a freedom of speech and a freedom of communication is still to go forward between Englishmen, remember that words, if even sworn to, are a sort of thing very indeterminate, easily misconceived, and misrepresented.’ The jury, however, found Briellat guilty, but recommended mercy. He was fined £100 and sentenced to a year in prison, but excused the humiliation of the pillory.38
The trials of Frost, Winterbotham, and Briellat stimulated legal argument and general discussion. Some hardliners sought to press charges of treason, while more liberal voices warned of the danger of ‘tyranny and oppression’. Jurists reviewed the law of treason to see whether mere words could be culpable, and generally concurred that they could not.39 Close analysis of King’s Bench rolls (the work of Philip Harling) finds only fitful and sporadic enforcement of the seditious libel laws in late Hanoverian England, but no shortage of intimidation. Crown prosecutors were involved in over 200 such cases between 1790 and 1832, especially around 1793, 1808–11, and 1817–21. Many cases, however, did not proceed to indictment, and conviction rates were erratic. Some juries were reluctant to convict, and as many as two-thirds of those prosecuted escaped punishment. Most of these cases concerned radical literature or ‘licentious’ publications, rather than words spoken aloud.40
Thomas Brimble, however, was sentenced to the pillory and six months in gaol at the Somerset assizes in 1793 ‘for speaking seditious words of the king and constitution’.41 William Roberts in Devon and Benjamin Ward in Nottinghamshire were found guilty on similar charges.42 John Nuttall, a cotton spinner of Bolton, was tried at the Lancashire assizes in August 1793 for proclaiming Thomas Paine ‘a better man than the king’, and toasting the company in the King’s Head, ‘here’s damnation to the king and constitution’.43 Benjamin Booth earned twelve months in Lancaster Castle gaol for damning the king and saying, ‘I would guillotine him if I could’.44
Another case in December 1793 concerned William Hudson (or Hodgson), who denounced the king as ‘George Guelph, a German hog butcher, a dealer in human flesh by the carcass’. He spoke these words in the London coffee house, after drinking three large glasses of punch, and caused further disruption by responding to a health to ‘the king’ by pledging ‘the French republic, and may it triumph over all the governments in Europe’. The coffee-shop keeper called for an officer to arrest the offender, and Hudson was tried at the Old Bailey. His protest that there was ‘no law… to order him into custody for mere words’ was overridden, and he was sentenced to two years in Newgate and fined £200, his imprisonment to continue until the fine was paid.45
A headline in the newspaper The World in April 1794 read ‘More Prosecution for Words!!!’ The rector of Shenfield, Essex, had been arrested after ‘a conversation on a political subject at an inn at Brentwood’.46 Stephen Cavern in London was sent for trial for saying that ‘kings… are of no use in this country… we are governed under a tyrannical government’.47 For his ‘seditious expression against the king and government’, John Sayer of Southampton earned six months in gaol.48 George Wilkinson of Bath also earned four months in prison for crying ‘success to the French’, and describing the king and his ministers as villains.49
But the initial panic was subsiding, and juries became less ready to convict. When John Porter of Somerset was prosecuted in 1794, ‘for wickedly and maliciously damning the king’, the assize jury found him ‘not guilty’.50 Another Somerset man, Evan Nepean, was likewise acquitted of ‘uttering seditious words’ in 1794 when the case against him collapsed.51 Juries at Leicester and at Coventry found defendants ‘not guilty’ after the courts refused to accept their original verdicts of ‘guilty of speaking the words in the indictment, but not with a malicious [or seditious] intent’.52 A tailor in a London pot house jested in September 1794, ‘that Treason was only Reason with a T at the beginning of it’.53
Seditious words were still dangerous, as much to the speaker as to the late Hanoverian regime. Casual speech in drinking establishments could lead to investigation by magistrates, and public oratory from a platform was sure to be monitored by authorities. Edward Swift, a labourer of Clewer, Berkshire (also described as a slopseller of New Windsor), was sentenced to a year in prison in 1794, ‘for uttering treasonable and seditious words against his majesty’. Witnesses swore that he expostulated, ‘Damn the king and queen, they ought to be put to death the same as the king and queen of France were … Damn and bugger the king and all that belong to him… Damnation blast the king, I would as soon shoot the king as a mad dog.’ This was a comprehensive explosion of disloyal invective, for which Swift was promptly convicted and sentenced.54
After Henry Yorke alias Redhead, aged 22, made an inflammatory speech at Sheffield in April 1794, local conservatives secured his indictment for high treason. Yorke had denounced tyranny and urged reform, commended the revolutions in France and America, and proclaimed his ambition ‘to cause revolutions all over the world’. He described the governments of Europe, including that of George III, as ‘frightful abortions of haste and usurpation’. He was also involved in pamphleteering and petitioning against slavery. The Council in London took up the case in March 1795 and advised that Yorke ‘should be proceeded against for misdemeanour only’, not treason. They rightly judged that a trial for speaking seditious words was more likely to result in a conviction. Eventually in July 1795 he was sentenced to two years in prison and fined £100, his supporters calling him ‘a martyr to the cause of liberty’. The prosecution side of Yorke’s King’s Bench file bulks out to over a hundred papers.55
By this time Hanoverian political culture was severely agitated, with growing unrest in England, discontent in Ireland, and scandals engulfing the royal family. Demonstrators shouted ‘No war. Down with George’, and some called out ‘no king’.56 Courtiers might well be forgiven for fearing revolution. In October 1795 when George III took his coach to parliament he was jostled and hissed, and someone threw a stone through his window. Hearing of this, the Surrey publican Lewis Bowyer remarked: ‘damn him, serve him right if they had stoned him to death … I wish his head was on Temple Bar.’ It took the assize jury five minutes to find Bowyer guilty, despite his excuse of intoxication.57
In another case that autumn, Samuel Wyatt, a young gentleman from Hampshire, was drinking at the Play House in Portsmouth when ‘God Save the King was called for and played’. An army officer, Lieutenant Clark, rebuked Wyatt for not taking off his hat, to which Wyatt responded: ‘Damn all royalty and satellites of kings.’ Later, in his defence, Wyatt claimed that ‘he did not know the meaning of the word satellite’ (which referred to attendant military officers). When the watch arrived to arrest him, Wyatt declared ‘that he had a right to say what he pleased in a free country, if this is a free country’. A report was sent to the Treasury Solicitor in London, and Wyatt was bound to appear at the next sessions.58
The Treasonable and Seditious Practices Act of 1795 (36 Geo. III, c. 7, designed to expire with the death of George III) declared it high treason, punishable by death, to ‘compass, imagine, invent, devise, or intend’ the death of the monarch, to deprive him or his heirs of their ‘style, honour, or kingly name’, to levy war against his majesty, or to stir foreigners to invade the realm. Such treason could be expressed through ‘printing or writing’ or ‘by any overt act or deed’. Authors, printers, and publishers were exposed to the terror of this law, but ordinary alehouse utterances were not covered. A further clause, however, explicitly penalized the spoken word. It would now be a ‘high misdemeanour’ (though not treason) for anyone ‘maliciously and advisedly, by writing, printing, preaching, or other speaking [to] express, publish, utter or declare any words or sentences to excite or stir up the people to hatred or contempt of the person of his majesty, his heirs or successors, or the government and constitution of this realm’. Anyone convicted of a second offence risked banishment or transportation for seven years.59 The Seditious Meetings and Assemblies Act, passed in the same session, required a magistrate’s permission for any public meeting of more than fifty persons, and allowed the authorities to declare any meeting ‘seditious’.60
The legislation of 1795 empowered the government to scrutinize discourse, but its bark was worse than its bite. It launched no Hanoverian reign of terror, and spawned no more than a scatter of prosecutions. Radical activists became more careful, or withdrew from public view, while ordinary people grumbled with impunity.61 Notwithstanding the new legislation, the ultra-radical subculture of the late eighteenth century gave voice to ‘a melange of ribald blasphemy, millenarianism and political treason’ in alehouses and coffee houses, debating clubs and ‘free-and-easies’, where government spies rarely penetrated.62 The crown itself allowed ‘the right of free, of temperate, of sober, and of ample discussion… upon every political subject’, though not seditious language that advocated the abolition of monarchy.63 English political culture had weathered a storm, though revolutionary echoes still reverberated in the legendary toast ‘may the last king be strangled in the bowels of the last priest’.64 Dissidents may have continued to say such things, but they were rarely taken to court. And if they were tried, the government could not count on convictions.
Among the few recorded cases from the next few years, William Davies of Surrey was prosecuted at Guildford in 1798 for ‘uttering scandalous and seditious words in the Swan and Castle alehouse’.65 Peter Sequest of Somerset was found guilty that year of wishing ‘success to the French, and God bless them’, but was fined only a shilling and sentenced to a month in gaol.66
In April 1800 a Welshman, John Griffith, praised Napoleon Bonaparte and declared aloud, ‘Damn King George the third, he is no king—I could make a better out of a block of oilwood, it being first painted and gilt, and then sent to parliament for their acceptance’. Despite claiming lunacy, and the fact that he spoke in Welsh, the offender was sentenced to two months in prison.67 Later in 1800, after George III had survived a pistol attempt at Drury Lane Theatre, the Londoner Robert Chapman was remanded for saying, ‘I wish I had a pistol, and I would shoot the king… If I had him here I would rip his bloody guts out, and lay them on the floor… damn his eyes.’68
Political talk in the Golden Lion in Cripplegate became heated later in 1800 when Jesse Hilliar, drunk on gin, said: ‘Damn the king and the parliament.’ The Old Bailey judge gave the jury a choice: ‘if you think that this was a drunken conversation, they not knowing what they said, you will acquit the defendant; but if you think this man was of wicked disposition, and wishing to overturn the government, to be sure you will find him guilty.’ The jury decided quickly, ‘not guilty’.69
A Westminster magistrate likewise invited a jury to decide if Daniel Turner’s words in 1806 were spoken with seditious intent, ‘or whether they were not rather the result of a silly and obstinate spirit of opposition, in one of those ridiculous disputes about politics, that so frequently occur between such men in their ale-house meetings’. Turner, an ex-soldier, had wished success to Bonaparte, ‘the universal friend of mankind’, nearly precipitating a riot in the Lemon Tree public house in Haymarket. The jury instantly acquitted the prisoner.70 In a similar case from Norfolk, one E. Stubbing said in a public house at Wymondham that ‘he wished Bonaparte would come, he would be the first man to join him’, and ‘that Bonaparte was a better man to his country than King George is to this’. Again, to the charge of uttering seditious words, the jury promptly returned ‘not guilty’.71
By the time of George III’s golden jubilee in 1809, the king was mad, blind, and incapacitated. Savage cartoon caricatures mocked both the monarch and the regent. Nonetheless, it was generally conceded that his majesty reigned over ‘a people happy, great and free’, where popular loyalism drowned out noises of dissent.72
The Age of Peterloo
A House of Commons review in 1821 of ‘the individuals prosecuted for political libel and seditious conduct in England and Scotland since 1807’ noted very few cases involving mere words. Most of the political prosecutions from this period concerned the writing or printing of seditious libels, not vocal utterance, and those found guilty suffered heavier custodial sentences and stiffer fines than mere seditious speakers.73 A few scares arose against the background of Luddite disturbances and the continuing Napoleonic war, but the danger of seditious words appeared again to have receded.
In 1813 the Yorkshire mill worker James Chapman faced prosecution for seditiously venting his ‘Jacobinical and revolutionary principles’, saying: ‘Damn the king, he is superannuated and has been these six and twenty years. We are governed by a set of damned whores, rogues and thieves. The Prince of Wales is a damned rogue, and the Princess of Wales a damned whore.’ But after very little deliberation the jury ‘returned a verdict of Not Guilty, to the universal satisfaction of a crowded court’.74 The view was widely held that an Englishman was privileged to fill his belly with beer and to say whatever came into his head. Despite the efforts of prosecutors, juries inclined to agree that a man in liquor was not fully responsible for the sins of his tongue.75
New fears and tensions gripped England after the end of the Napoleonic wars. Amidst economic hardship and agitation for reform, the last years of the Regency and the first years of the reign of George IV brought a new round of prosecutions for seditious speech. Some of this was alehouse bravado, of the kind that was long familiar, but the courts also targeted political orators who brought radical appeals to the public. Even more dangerous was the subversive and seditious press. As in the 1790s, an anxious government equipped itself with new legislation.
The Treason Act of 1817 (57 Geo. III, c. 6) made perpetual the provisions of the 1795 law (36 Geo. III, c. 7), penalizing all ‘compassings, imaginations, inventions, devices, or intentions’ tending to the king’s death, expressed, uttered, or declared ‘by publishing any printing or writing, or by any overt act or deed’. The principal danger resided in writing, however, and the statute did not address spoken words.76 Habeas corpus was again suspended, and ninety-six people were detained in 1817 on suspicion of treason.77 ‘An act for the more effectual prevention and punishment of blasphemy and seditious libels’ in 1819 further criminalized the composing, printing, or publishing of any libel ‘tending to bring into hatred or contempt the person of his majesty, his heirs or successors, or the Regent, or the government and constitution of the United Kingdom’, but it did not specifically mention crimes of the tongue.78
Descriptions, denunciations, and exculpations abound, but we have no voices of Peterloo, the ‘massacre’ of August 1819, when a festive gathering of reformers at St Peter’s Fields, Manchester, was violently dispersed by the Manchester Yeomanry and the Fifteenth Hussars. At least eleven people from the crowd of 60,000 were sabred or trampled to death.79 The orator Henry Hunt, who had planned to address the assembly, was initially charged with treason and eventually tried for conspiracy and sedition. At the York assizes in 1820 he was sentenced to two and half years in prison.80
Robert Wedderburn, an artisan preacher in Soho, said in October after the Manchester events ‘that the revolution had already begun in blood there, and that it must now also end in blood here’. He called the Prince Regent a tyrant who had lost the confidence of his people, and claimed that, given enough wine and whores, ‘the poor fool was very well satisfied, and so he don’t care a damn about the people’s sufferings’. Already under surveillance for his agitation against slavery, Wedderburn was convicted of blasphemous libel and sentenced to two years in prison.81
The Manchester events also inspired James Taylor, a Staffordshire labourer, to propose the toast ‘success to Hunt’ at the George and Dragon in Waterfall in November 1819. Two travelling soldiers refused to join the health, not even for ‘the best bottle of wine in the house’, and drank instead to the king. Taylor responded intemperately, ‘Damn King George, Damn the Regent. I wish that [Henry] Hunt had fifty thousand men as good as myself… [to] clear the country of them’, and further wished for ‘the cutting off the head of the Prince Regent’. This led to Taylor’s appearance at the Staffordshire assizes in March 1820 on charges of sedition, where, despite the weight of evidence, he was acquitted.82
In another case from Staffordshire, the labourer Edward Price was drinking at the King’s Head in Wolverhampton in November 1819 when he launched into a rant against the monarchy:
I wish I had the Prince Regent and the crown here, I would trample them under my feet into dust… I wish … the Prince Regent… into the bottom pit of hell… Damn the king and all the [royal] family… I should wish to take them out of their coffins when they are dead and burn them to ashes.
When the landlord refused Price any more ale, he moved on to the Seven Stars, where the constable of Wrottelsey arrested him. Bound over to appear at the next quarter sessions, Edward Price was indicted for attempting ‘to raise and excite discontent, disaffection and sedition in the minds of the liege subjects of our lord the present king, and to traduce, vilify and bring into hatred’ the Prince Regent. Despite testimony to his good character, and observations that he became ‘riotous when drunk’, the court found him guilty and sentenced him to twelve months in prison.83 More fortunate was the Yorkshireman William Brown, charged in July 1820 for saying ‘the king is a bad one… I wish I had a bullet in the king’s liver. If I had a chance I would put a bullet in.’ Sufficient witnesses corroborated these words, but the Grand Jury threw out the case.84
Modern Crimes
By the end of the Hanoverian era, in the reigns of George IV and William IV, the monarchy fell into further disrespect. Scandal followed the royal family, and the crown was held in contempt. But with parliament ascendant and the press emboldened, it hardly mattered what ordinary people said. The accession of Queen Victoria in 1837 introduced more cordial relations between the queen and her subjects, though not without occasional scares. In November 1837 a madman calling himself ‘John II, king of England’, and claiming to be the son of George IV and Queen Caroline, uttered ‘seditious words and threats’ against the new monarch, challenging her: ‘you usurper, I will have you off the throne before this day week.’ Examined in the Court of Queen’s Bench, Captain John Goode showed ‘violent symptoms of mental derangement’, and was declared insane. At one point he asked, ‘why am I not tried for high treason’, when charged only with ‘seditious words’.85
A decade later a panicked reaction to Chartism led to the Crown and Government Security Act of 1848, which made it a felony, punishable by transportation or imprisonment, to engage in ‘open and avowed speaking’ of a treasonable nature, or to advocate treason by writing or speech against the queen.86 Immediately dubbed ‘the new gagging bill’, the law became the target of seditious ballads that warned of its likely effects:
Mind what you say by night and day,
And don’t speak out of reason,
For everything God bless the queen,
Is reckoned up high treason.87
The act was rarely used, and came to be regarded as antique and ineffective.
High Victorian opinion upheld ‘freedom of speech’ as a distinctly British characteristic, a hard-won right that underpinned the nation’s greatness. The ability of citizens to speak and write as they pleased was taken as a sign of political maturity that distinguished modern Britain from the more repressive regimes of continental Europe and from England’s less liberal past. Spokesmen for the establishment (the self-styled ‘guardians of society’) liked to recall these principles at times when provocative oratory or inflammatory publications tested them to the limit. England’s freedom of expression excited the ‘astonished admiration’ of the people of Europe, wrote The Times in 1846, ‘her liberty. . .stands firm and immovable, rooted in the affections of the people’.88 Similarly editorializing in 1879, the London paper The Graphic remarked that
in continental countries… any language or writing which is calculated to bring the ruling power into discredit or contempt is very speedily and sharply repressed. In these islands, on the contrary, there is an almost superstitious reverence for freedom of speech, and seditious words, unless accompanied by seditious deeds, are usually permitted to be uttered with impunity.89
On both occasions, these writers suggested, Irish extremists had crossed the line and may have forfeited the protections of the law.
Judges too spoke warmly of English liberties when they reprimanded alleged speakers of sedition. Free speech was protected, proclaimed the Recorder at the Central Criminal Court in April 1886, ‘providing always the utterances were bona fide, and that they involved only honest criticism for the amendment of our social and political relations, and were not made in a tone and in language which seemed to encourage acts of violence’. Words became ‘seditious’, he said, when the speaker ‘went beyond fair discussion in considering questions affecting the constitution’ and ‘intended to stir up hatred and contempt for the power of the country’. Such was the case of socialist agitators at Trafalgar Square, who had denounced the House of Commons as capitalist parasites, and recommended hanging the enemies of the poor on lamp posts. The jury, however, was not convinced and found the defendants ‘not guilty’.90
It became a precept of Victorian law, passed on to the present, that speech was free though actions had consequences. Words spoken on a political platform or in a public house were not in themselves perilous, but could become so if they caused trouble, incited crime, or led to a breach of the peace. The distinction was not always clear, and audiences, arresting officers, courts, and juries could harbour different opinions. Victorian governments, like their modern successors, were more inclined to use laws against unlawful assembly than laws against sedition to control speech they thought dangerous. But any fear that private conversations would reach the ears of the authorities was long considered absurd. The tone was set by the versatile and wide-ranging Metropolitan Police Act of 1839 that made it an offence for anyone ‘in any thoroughfare or public place’ within the metropolitan district to ‘use any threatening, abusive, and insulting words or behaviour with intent to provoke a breach of the peace’. This was a law that could be used against political orators as well as drunks, and it remained in force until 1986.91
Following the end of the First World War in 1918, government officials again became concerned by threats of seditious disturbance. The culprits, or suspects, included mutinous servicemen, militant workers, unemployed labourers, communist agitators, Irish nationalists, anarchists, and suffragettes. Private conversation remained beyond the reach of the law, but seditious public oratory again became subject to investigation. Police informers infiltrated meetings to make transcripts, and members of parliament demanded action against dangerous expressions. Targets in 1919 included the Bolshevik pattern-maker, David Ramsey, imprisoned for five months for words ‘calculated to cause sedition and disaffection among the civilian population, and to prejudice discipline among the king’s forces’;92 agitators in the Welsh collieries whose speeches threatened ‘to inflame passions and… to foster violence and revolution’;93 and speakers at Hyde Park Corner who advocated the overthrow of monarchy and capitalism. One such orator, the anarchist bus conductor Sydney Hanson, cried ‘to hell with the Union Jack, the Union Jack is a flag of tyranny’, and was fined 40s. under the Metropolitan Police Act for ‘insulting words or behaviour’ liable to cause a breach of the peace.94
Lloyd George’s government kept its nerve and restrained the more zealous constabularies. Regional police forces were instructed not to initiate prosecutions on their own, but to report to Whitehall any speech that was ‘of such a character that the question of prosecuting the speaker requires serious consideration’.95 When reports came in from Manchester of a socialist speech at the Free Trade Hall in November 1919, the Home Office considered whether to press charges of sedition. One official urged prosecution if ‘there is a distinct prospect of a trial for seditious libel resulting in a conviction’. Another pondered ‘whether more harm would be done by prosecuting or by giving such speeches impunity’. A third warned that conviction could not be assured, and that even a successful prosecution would ‘give a large advertisement to the circulation of dangerous views’. The official wisdom was to keep a watching brief, but to hold the powers of government in reserve. It was remarkably similar to considerations by the Elizabethan Privy Council, and to the policy that generally prevails today.96 Public authorities had to decide how much to tolerate and when to intervene, but political judgement always offset the complexities of the law.
After the General Strike of 1926 the Attorney General and Director of Public Prosecutions prepared secret advice for the Home Secretary how to deal with revolutionary and seditious threats. In all cases, they wrote, ‘the question, “what is the law?” is very closely allied to the question, “how should the law be applied?”’ The difficulty arose, they said, ‘from the British theory that very full liberty should be allowed for the propagation of “opinions” as distinct from seditious “incitements” ‘. Whether this ‘British theory’ was to be treasured or regretted was a matter of opinion. It remained
exceedingly difficult to extend the law so as to strike at the propagation of subversive opinions without interfering unduly with new ideas which may seem subversive to one generation and be generally accepted by the next. English law allows the tares to grow with the wheat so long as there is no immediate danger to the safety of the state.
A further problem, of practicality rather than principle, was that the common-law offences of seditious conspiracy and seditious libel were ‘triable only on indictment’ and needed to be decided by a jury. As before, in so many similar circumstances, the government weighed questions of security and law enforcement against outcomes that could be unpredictable and counter-productive.97
By the later twentieth century the very concept of seditious speech seemed archaic. The Law Commission of England and Wales concluded in 1977 that there was no need for an offence of ‘sedition’ affecting political conduct, since existing public-order laws would suffice.98 The European Convention on Human Rights, which the United Kingdom was quick to ratify, proclaims ‘the right of freedom of expression’ and the right ‘to receive and impart information and ideas without interference by public authority’. This was enshrined in the Human Rights Act of 1998, but hedged to allow room for ‘the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, [and] for the protection of the rights of others’.99 Though not extensively tested in the courts, there is room here for argument on all sides.
New global threats have refocused attention on speech that sparks hatred or encourages terrorism. The modern world appears menaced by different crimes of the tongue. Britain’s Public Order Act of 1986 makes it an offence for anyone to use ‘threatening, abusive or insulting words or behaviour’ with the intent to stir up racial hatred.100 The Crime and Disorder Act of 1998 and the Racial or Religious Hatred Act of 2006 further criminalize offences involving ‘threatening words’.101 The 2006 Terrorism Act penalizes the ‘glorification’ of terrorism, prompting critics to caution that ‘rants should be rejected with argument, not with police and prisons’.102
Modern legislation guards against disruptive or antisocial speech to protect the community’s values and institutions, but it does not privilege particular persons or officeholders. Britain’s royal family enjoys no special protection from verbal assault, though it is unlikely to countenance prosecution of its enemies. The modern monarchy is a fixture of celebrity culture, an anomaly in a democratic society, and critics attack not its power but its privileges. The House of Windsor lays claim to a millennium of English kingship, and inherits too the tradition of demeaning the monarch. But there is no crime now of compassing or imagining, no penalty for lèse majesté. It may be rude and crude to call the queen ‘a harridan’, her heir ‘an expensively educated dicksplash’, or her husband a Nazi, but one can say such things with impunity.103 Unlike earlier declarations—that Henry VIII was a tyrant, Elizabeth I a whore, James I an ass, and Charles I a baby—these may be sins of the tongue, but nobody counts them as crimes.