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date: 15 November 2019

Treason, Seditious Libel, and Literature in the Romantic Period

Abstract and Keywords

This article examines the effects of the unprecedented number of prosecutions for political opinion in the 1790s and afterward on romantic period literature. The chief instrument for these prosecutions was the law on libel. This legal framework placed a premium on various forms of metaphor, irony, and allegory, which the Crown had to construe as concrete libels in any prosecution. Many trials became major public events, a visible part of the period’s print culture, widely reported in newspapers and eagerly consumed by the public in a variety of media. The courtroom provided a theater of radical opinion in which defendants could publicize their views and mock the authority of the state. The pressure exerted on writers by the law on libel also conditioned a more general anxiety and may even have influenced developing ideas of the autonomy of the aesthetic.

Keywords: treason, libel, seditious libel, prosecution, law, opinion, courtroom, Thomas Paine, William Godwin, William Hone, censorship

Legal and Political Contexts

The lapsing of the licensing act in 1695 set the legal conditions for the prosecution of political opinion in the eighteenth century, although in the theater the conditions were somewhat different. The Licensing Act of 1737 made the Lord Chamberlain responsible for preperformance censorship there (Worrall 2009). By the 1760s it was widely believed that freedom of the press outside the theater was a liberty granted by the British constitution, but alarms were frequently raised about the license taken by critics of the authorities, especially in relation to the furor surrounding “Wilkes and Liberty.” Faith in the role of liberty of the press to bring about national improvement in general often coexisted with fear about its abuse and an elite resistance to throwing public discussion open to wider participation. Few if any wished for a return to prepublication censorship, but there were frequent calls for the press to be curtailed.

The chief instrument in the government’s hands throughout this period was the law on seditious libel, an imprecise and often unwieldy weapon that only intensified uncertainty about the limits of the freedom of the press. Fundamental to the law of libel in general was the aim of preventing breaches of the peace provoked by defamation of character (Hamburger 1985). The extension of this idea to sedition had been predicated on the notion that libeling the king or representatives of the state would provoke large-scale public tumult. The doctrine had developed in the despotic context of the Star Chamber, a fact frequently used in the eighteenth century to discredit it as a vestige of Stuart absolutism out of step with enlightened times. A series of cases in the 1770s and 1780s—John Almon, Henry Woodfall, John Miller (1770), and William Shipley (1783)—gave vent to this feeling in challenges to the “Mansfield doctrine.” In 1770 Alexander Wedderburn—later, as Lord Loughborough, to preside over some of the most notorious cases from the later part of the period—insisted that only the jury, as the true representative of the people, had the authority to arrive at a verdict: “So changeable is the nature of a libel? [sic] so much does it assume the cameleon, and suit its colour to the complexion of the times! in short its libellous quality is founded entirely on popular opinion. There is no other standard, by which it can be measured or ascertained. Who, then, so proper as the people to determine the point?” (Cobbett 1806–1820, 16:cols. 1288–1289). Lord Mansfield did not invent the doctrine that came to bear his name, but provided its most authoritative statement in his judgment in the case of Woodfall (1770) and reiterated it in 1783 at the trial of Shipley, dean of St. Asaph. Mansfield insisted that matters of law were the exclusive province of the judge, although he acknowledged that the jury had authority over matters of fact. For Mansfield there were only two matters of fact at issue in trials for seditious libel. The first was publication—the simple question of whether the defendant published or sold the alleged libel—only rarely a matter of dispute. The second was the truth of the innuendoes or averments stated in the indictment or information, in particular the glosses provided by the prosecution on any figurative or otherwise ambiguous phrases that that it was claiming as libels. Once it was satisfied of these matters of fact, the jury, according to Mansfield, must bring in a guilty verdict, without considering the question of whether the meaning applied was libelous. This question was to be determined by the judges in the Court of King’s Bench when it met to pass sentence. Those who attacked the Mansfield doctrine took juries to be more likely to uphold the liberty of the press than a court that met under the authority of the Crown.

Despite the power vested in judges, the importance of innuendoes in the legal process created various opportunities that writers quickly exploited once the licensing act had lapsed. The requirement that any innuendo be explained inevitably recommended modes of irony or allegory to government critics and satirists. The Earl of Shaftesbury was one among many who recognized from early on the likely effects of this requirement: “If They are forbid to speak at all upon such Subjects; or if they find it really dangerous for them to do so; they will then redouble to Disguise, involve themselves in Mysteriousness, and talk so as hardly to be understood, or at least not plainly interpreted, by those who are displos’d to do ’em Mischief” (quoted in Kropf 1974–1975, 161). Many cases for seditious libel turned on lengthy debate about whether the innuendos provided in the information brought by the Crown were correct. The most daring defense attorneys, like John Gurney at Daniel Isaac Eaton’s trial in 1793, could accuse the government of sedition for introducing a seditious meaning into the text.

Trial proceedings themselves became a print phenomenon eagerly consumed by an expanding reading public, who followed these debates about the limits on the freedom of the press closely. When these issues were topical, as at the time of the Wilkes affair in the 1760s, in the revolutionary decade of the 1790s, or after 1815, demand for libel proceedings could even eclipse the turnover in those for adultery and murder. In 1795 The British Critic (3: 704–705) identified the appetite for trial proceedings of all kinds as the sign of a general depravity in public taste: “As Trials for Adultery are made vehicles for lewdness, so are Trials for Sedition employed to circulate disaffection. A published trial, should be a plain report of what was said in Court: This is a flourished account, adorned with capitals, italics and notes, tending to accuse the Judge, Counsel, Jury, &c. We may well doubt whether any part of such a publication contains a fair report.” The passing of Charles Fox’s Libel Act in 1792 had overturned the restrictions of the Mansfield doctrine on the power of the jury, but by this time the French Revolution had heated the political temperature sufficiently to render the victory over the Mansfield doctrine almost irrelevant.

Pitt’s Repression

In May 1792, while Fox’s bill was still before the Lords, a royal proclamation was issued ordering magistrates “to discover and prosecute the authors of divers wicked and seditious writings which had been printed, published and industriously dispersed, tending to excite tumult and disorder” (see Annual Register 34 [1792]: 158–160, for the full text). The chief but not its only target seems to have been the second part of Thomas Paine’s Rights of Man (1792b) and its role in encouraging a popular radical movement, represented by groups like the London Corresponding Society. Paine was served with a summons days after the proclamation. His publisher, J. S. Jordan, was taken up at the same time, but Paine was not brought to court, apart from a prosecution for debt, probably encouraged by the law officers. Paine mocked the assumption that the people were not able to judge of the issues for themselves without the aid of protection from the libel laws in his Letter Addressed to the Addressers (1792a). In November the proclamation was given teeth by the formation of the Association for the Preservation of Liberty and Property against Republicans and Levellers, which actively sought out prosecutions, encouraged the boycotting of newspapers that were seen to entertain reform, and put pressure on landlords not to host debating societies. Although not directly a government initiative, the Association played a key role in the increase in prosecutions for seditious libel to record levels (see Philp 2014, 40–70; for prosecution numbers, see Harling 2001, 109; Emsley 1981 and 1985; and Poole 1995).

Paine’s trial finally took place in December 1792. Possibly the delay was to allow the government opportunity to find (or create) the evidence to make this case stick by way of gathering proof of its inflammatory tendency among the lower orders. William Pitt and his colleagues were wary of giving Paine the opportunity to use the dock as a platform to defend his views (and disseminate them in published versions of the proceedings). So the trial commenced only after he had left the country—in September with the government’s full knowledge—to take up a seat in the French Convention. When the trial started it was in the context of the alarms about insurrection, reinforced by a further proclamation at the beginning of the month, brought forward as proof of the dangerous “tendency” of Rights of Man. Prosecutions for seditious libel always focused on a text’s “tendency”—that is, its effects or likely effects in the world —rather than on any more abstract idea of meaning or intention. This distinction had been important to those attacks on the Mansfield doctrine that insisted judgments about whether a text was libelous depended on knowledge of the world rather than on the strictly legal matters that were the judge’s domain. Thomas Erskine, the Whig politician and friend of Charles James Fox, acted as Paine’s defense attorney. Erskine’s strategy was to argue that far from attempting to inflame the passions of the people, Rights of Man was a contribution to long-standing philosophical debates about British liberty, presenting it as addressed to an impartial posterity rather than rabble rousing. Paine had addressed the court via a letter to the attorney general, insisting that “the natural currency of opinion”—gathered in “coffee-houses, and places where I was unknown” (Barrell and Mee 2006–2007, 1:99)—had more right to judge of the tendency of his pamphlet than any court. This contribution did not square with Erskine’s approach, with its more abstract notion of the public, a point the attorney general scornfully picked up on and exaggerated in his address to the jury: “Whether the sense of this nation is to be had in some pot-houses and coffee-houses in this town of his own choosing, is a matter I leave to your judgment” (Barrell and Mee 2006–2007, 1:85).

These arguments may well have fed into developing ideas of “the public” for the Romantic period, not least, for instance, in William Wordsworth’s later distinction—made in his “Essay Supplementary to the Preface” (1815)—between “the Public” and “the People, philosophically characterized” (see Green 2014, 1–3). Paine’s trial was eagerly followed by the reading public in newspaper reports and a variety of other printed matter. These ranged from hostile one-page broadsides to what were presented as full transcriptions of proceedings, often framing the courtroom debate to their own political perspective. William Godwin—who attended the trial itself—wrote to Erskine to complain of the lawyer’s failure to defend the principles of Paine’s pamphlet and accused him of thinking his client was guilty before he even took on the case (Crosby 2010). One immediate consequence of the trial was the formation of the Friends of the Liberty of the Press. Comprised of popular radicals like Joseph Gerrald and John Thelwall, as well as Whigs like Erskine, Charles Grey, and Richard Brinsley Sheridan, it spoke to the way the idea of the liberty of the press could command a range of liberal opinion in its defense. Nevertheless, tensions within this broad alliance were felt even at the first meeting, when there was an argument about whether the meeting was celebrating the truth of Paine’s book or the principles of the liberty of the press more generally (see the discussion in Mee 2016).

For the most part, political trials were published by those sympathetic to reform and their availability perceived as a guarantee of the people’s right to participate in political discussion. Erskine wrote to Thomas Walker, acquitted on a charge of treasonable conspiracy early in April 1794, urging him to publish the notes of his trial in Lancaster: “Your friends here are much disappointed at not seeing your trial published, and there are catchpenny things circulated to pass for it. It certainly throws great light upon the businesses which agitate the public at this moment, and its appearance now would be useful” (quoted in Knight 1957, 167). By 1795 the British Critic (3:705) and the rest of the loyalist press were vehemently complaining of the circulation of trials “augmented in the style of Messrs. Ridgeway and Symonds”; that is, with their radical message pointed up by typographical and other means. For defendants, trial literature offered an opportunity to take their political sentiments to a wider public, whatever the outcome of the case (Epstein 1996). At Eaton’s trial in 1793 the prosecution made the melancholy reflection that “whenever a libel is prosecuted, it draws into a second course of agitation, and the very observations made upon the libel in a Court of Justice, become, as it were, a promulgation of the libel itself” (Barrell and Mee 2006–2007, 1:281). Early London Corresponding Society member Maurice Margarot’s defense was clearly made with publication in mind: “What I say this day will not be confined within these walls, but will spread far and wide” (Margarot 1794, 4). No steps seem to have been taken to prevent proceedings reaching the public, despite their propaganda value, although in the past consent had been sought from the court for the publication of court proceedings. In Scotland, where the legal system was different, publishers may have felt less secure. In 1794 The Critical Review (10:342–343) certainly saw some reticence in the version of Thomas. F. Palmer’s trial taken down by the respected court reporter William Ramsey: “The eminent short-hand writer, who reports this trial, appears to have acted under the impulse of some very extraordinary fears, as a great part of the speeches are given in such a state of mutilation, that he must have supposed it treason to record the words of the Scotch judges.” When he was prevented from addressing the jury after his acquittal, Thomas Holcroft told Lord Chief Justice Eyre that he would “take some other means of publishing what I think of the business” (Barrell and Mee 2006–2007, 8:9). Although Eyre warned him that he had “better take care, Sir, or you may bring yourself into another scrape,” Holcroft went ahead and published his Narrative of Facts (1795) anyway, part of a distinctive subgenre of speeches that were never made, because a case was either dismissed or never even came to court (see Holcroft 1795; Pigott 1793; and Thelwall 1795b). Perhaps no direct legal action needed to be taken against Holcroft, because there were other ways of driving him out of the public sphere; he found it almost impossible to earn a living as a dramatist after the trials and was effectively forced into exile in Germany.

By this stage, Pitt’s repression had extended to the Traitorous Correspondence Act (1793), designed to monitor communication between Britain and France once war had begun, and the suspension of habeas corpus in 1794 in preparation for the treason trials. The trials for sedition and treason that took place from 1792 to 1794 offer a remarkable record of the struggle over freedom of speech and parliamentary reform fought out both in the courtroom and in the press. Radicals used all the resources that earlier authors had developed to exploit the uncertainties of the law on libel, but they were quick to adapt these techniques to their own purposes and disseminate them to as wide an audience as possible. Technical deficiencies in the application of the law, especially in the regions, could help defendants. In February 1793 Thomas Spence was acquitted of selling Rights of Man because the book was misquoted in the indictment. Complications about the specifications of editions could compromise the campaign of prosecutions, as occurred with some of the cases against Charles Pigott’s The Jockey Club in 1792–1793. Prosecutions that depended on interpretation of figurative or ironic material were especially uncertain. Eaton’s trial in February 1794 for publishing the “King Chaunticlere” allegory became the most celebrated instance. On November 16, 1793, Eaton’s Politics for the People (1:102–107) had carried a story based on a Thelwall performance at the Capel Court debating society. Thelwall had been illustrating a point about the love of liberty as against the love of life with the story of a tyrannical gamecock, “a haughty sanguinary tyrant, nursed in blood and slaughter from his infancy—fond of foreign wars and domestic rebellions, into which he would sometimes drive his subjects, by his oppressive obstinacy, in hopes that he might increase his power and glory by their suppression” (Barrell and Mee 2006–2007, 1:264). In the story, the gamecock is beheaded by a farmer. The government claimed that the story—as printed by Eaton—was an allegory that libeled George III. The first reference to the “gamecock” in the information was interpreted as an innuendo “to denote and represent our said lord the king” (Barrell and Mee 2006–2007, 1:264).

The attorney John Gurney secured an acquittal for Eaton with a brilliant defense. So eager was the government to find libels, argued Gurney, that they had “set themselves to work to make one” (Barrell and Mee 2006–2007, 1:32). It was more obvious, he argued, to see the gamecock as Louis XVI, or tyrants in general, than as George III, who surely, he added rather archly, could not be understood to be a tyrant (Barrell and Mee 2006–2007, 1:291–292). The growing self-consciousness of radicals about strategies of safe printing can be glimpsed in the fact that just three issues before “King Chaunticlere,” Eaton had already published a sonnet, “What Makes a Libel? A Fable”:

  • In AESOP’s new-made World of Wit,
  • Where Beast’s could talk, and read, and, write,
  • And say and do as he thought fit;
  • A certain Fellow thought himself abus’d,
  • And represented by an Ass,
  • And Aesop to the Judge accus’d
  • That he defamed was.
  • Friend, quoth the Judge, How do you know,
  • Whether you are defam’d or no?
  • How can you prove that he must mean
  • You, rather than another Man?
  • Sir, quoth the Man, it needs must be,
  • All Circumstances so agree,
  • And all the Neighbours say ‘tis Me.
  • That’s somewhat, quoth the Judge, indeed;
  • But let this matter pass.
  • Since twas not AESOP, ’tis agreed
  • But Application made the Ass.

(Politics for the People 1793–1795, 1:563)

If Eaton had published Thelwall’s allegory in full awareness of the defense that could be provided for it, as this sonnet suggests, others quickly picked up on his example, exploiting “the uncertainty of language” (Harling 2001, 111) as the chief weakness in the law on seditious libel. Spence soon afterward published “examples of safe printing” that openly parodied the use of innuendoes, enjoining his readers to learn the lessons of Eaton’s trial: ‘Let us thus, O ye Britons, shew what we do not mean, that the Attorney General may not, in his Indictment, do it for us (Pig’s Meat 1793–1795, 2:14). Political trials handed the radical movement a vehicle for publicity, but also a means of disseminating the techniques to exploit the linguistic uncertainties that haunted the law on libel.

These conditions, Harling suggests, made the law of libel “a formidable instrument of harassment, if ultimately not an efficient instrument of repression” (2001, 111). Be that as it may, the harassment at least was formidable enough to destroy careers and ruin lives, even drawing into its vortex many writers only on the fringes of radical opinion and arguably destroying a literary generation (Johnston 2013). In terms of those directly targeted by the legal system, many faced an ex officio information that required them to appear in court whenever called upon, which could come with a requirement for securities that could bankrupt a bookseller or at the very least ruin his business and put him out of circulation. Even where the government did not act on the information, its threat could dog the accused for years. Trial dates could be set arbitrarily, giving the defendant little time to prepare for the day in court. When it came to the courtroom, judges still had considerable powers despite Fox’s Libel Act. They were able, for instance, to give their opinion on the case to the jury, a powerful influence given the weight of their legal authority behind it. Moreover, libel cases were often tried before special juries packed with government men. Even when there was an acquittal, costs meant that the processes of the law bore heavily on defendants. “What rational hope of success can the ‘acquitted felon’ entertain,” asked the Norwich-based journal The Cabinet, “ruined in his business by a long imprisonment, beggared by the expenses of a long trial? And where are his means to carry on a legal conflict with administration, which has the secret committee of both houses of parliament to draw its plea of justification, and the treasury to pay the costs and damages?” (1795, 10).

Treasonable Imaginings

Despite the real and potential weight of these powers, the inefficiencies of seditious libel as a legal instrument encouraged the government to explore ways to extend its control over the radical societies. By 1794 it had decided to resort to the law on treason. Treason depended on proof of a definite threat to the person of the monarch, and as such the punishments were much more severe than those attending seditious libel. John Barrell (2000) has meticulously traced the pressures put on the statute on treason by law officers in 1793–1794. Treason was defined in terms of “imagining” the death of the king, but whereas this medieval legal usage had referred to determinate plans against the person of the king, defined as “overt acts,” now it began to be extended toward a looser notion of setting in train events that might result in the monarch being deposed. At the treason trials at the end of 1795 this “new-fangled treason,” as Godwin (1794, 21) among others called it, was brought to bear in the cases of the veteran radical John Horne Tooke; Thomas Hardy, secretary of the London Corresponding Society; and Thelwall. Erskine’s defense depended on calling the government’s lawyers back from imagining distant possibilities to the specific issue of proving intentions manifested in overt acts, but many of those implicated later claimed that they owed their lives to the arguments laid out in Godwin’s Cursory Strictures (1794). Unlike Erskine, who stuck close to the question of proving overt conspiratorial acts against the Crown, Godwin’s pamphlet was primarily concerned with the accuracy of Chief Justice Eyre’s account of what “might” have happened to the king. This defense may have already conceded too much to the prosecution. What “might” have happened was legally beside the point. To think about possible consequences was to join in the game of imagining in the loosest sense. Erskine insisted on definite intentions, not their imaginary consequences.

Although Erskine was successful in the short term, in defeat the government began working toward the reconfiguration of the constraints on freedom of speech that culminated in the Two Acts passed at the end of 1795. A widely supported campaign against the Convention Bills, as they also became known, gained momentum over the course of the year, while the government was still drawing up its plans, bringing together a gamut of opinion from the London Corresponding Society to the Foxite Whigs. Godwin and Samuel Taylor Coleridge contributed Considerations on Lord Grenville’s and Mr. Pitt’s bills (1795) and The Plot Discover’d (1795), respectively. Godwin insisted that the radical movement was a philosophical enterprise and distanced himself from friends like Thelwall in their attempts to address a “mixed and crowded audience” (1795, 17; see Mee 2011). In their final form, the Convention Bills made it impossible for meetings of more than fifty people to gather without the explicit permission of a magistrate and increased the punishments for what were deemed seditious activities. In practice the Two Acts were little used (Emsley 1981, 1985), but they reinforced the idea that new-fangled treason was a legal reality and fed a more general paranoia that freedom of speech was being circumscribed. “There is no case to which the bill may not be stretched,” wrote Godwin in Considerations, “there is no offence, present or future, definite or indefinite, real or fictitious, that it may not be made to include” (1795, 29).

Literary historians have identified the pressures of these legal constraints on the imaginative texts of the period, whether in terms of a general “mood” of paranoia (Pfau 2005), shared by loyalist fears of conspiracies as well as the writers afraid they were under constant surveillance from unknown sources, or by the way they register on the formal properties of poetry and fiction to the extreme point of “expressive silence” (Bugg 2013, 4, using a phrase that appears in Godwin’s Caleb Williams [2009, 142]). Possibly the onset of Pitt’s repression of opinion in 1792–1793 materially influenced William Blake’s decision to restrict himself to publishing illuminated books for a small audience (Phillips 1994, 265). Blake wrote in his notebook:

  • I say I shant live five years
  • And if I live one it will be a
  • Wonder June 1793 (Blake 1988, 694)

Certainly the illuminated books soon started start to depict a world governed by the nets and chains of The Book of Urizen (1794). Other writers and artists were more closely engaged with the developing legal situation from 1792 onward. William Godwin followed Pitt’s policies against the press carefully. Not only did he participate in campaigns by private letters and public documents, but he also regularly visited Newgate to meet with those like Gerrald and Holcroft who had fallen foul of Pitt’s system of repression. Things as they Are, or, The Adventures of Caleb Williams (1794) is a novel framed by the laws of sedition and treason. The original preface was only published in the second edition of 1796, in which the author claimed it had been withdrawn from the first edition “in compliance with the alarms of the booksellers” after the arrests for treason of May 1794 (the month the novel was first published). Godwin insisted: “Terror was the order of the day; and it was feared that even the humblest novelist might be shown to be constructively a traitor” (Godwin 2009, 312).

Anxiety certainly permeates the text, as its hero is pursued into exile, thrown into prison, and brought to court at the climax of the novel. Godwin even revised the final courtroom scene just prior to publication. The original ending has Caleb defeated and found guilty. In the published version, his enemy, Falkland, repents, but the prison-house of consciousness does not grant Caleb release, as he remains dogged by guilt and condemns himself as “a cool deliberate, unfeeling murderer” (1794, 301). The displacement of institutional onto personal revelation may have gone on to become a familiar romantic device, but in Godwin’s novel it does not serve to free the individual from a pervasive sense of surveillance and complicity, even if internalized into psychological states. By the second edition of Political Justice (1796), Godwin was wondering about the extent to which government “insinuates itself into our personal dispositions, and insensibly communicates its own spirit to our private transactions” (4). His friend Elizabeth Inchbald, who also visited Holcroft in prison, told Godwin she had written her novel Nature and Art (1796) with “Newgate before my eyes” (Inchbald 2005, 221). Preparing it for publication in 1794, she had shown it to Godwin, Holcroft, and the queen’s attorney, George Hardinge. On their advice, she changed the title, which at one stage had been “A Satire Upon the Times,” and delayed its appearance (Garnai 2009, 134). The way this regime had registered itself on the consciousness of writers can be seen in the distance between Mary Wollstonecraft’s confidence that she could “utter my sentiments with freedom” in Vindication of the Rights of Woman to the “stutters, elisions, truncated utterances, and paranoid whispers” (Bugg 2013, 19) of The Wrongs of Woman. The same journey could be measured in the distance between Charlotte Smith’s Desmond (1792) and her later novel Marchmont (1796). Perhaps a distinctive genre of post-1795 fiction can be identified in this trajectory (Bugg 2013). Certainly the legal framework of libel seems to have filtered deep into Godwin’s thinking about the relationship between intention and influence more generally, including his distinction between the “moral” and “tendency” of literary works sketched in his essay “Of Choice in Reading,” published in The Enquirer (Godwin 1797). The moral of a work, as Godwin defined it, was “that ethical sentence to the illustration of which the work may most aptly be applied.” The tendency, on the other hand, “is the actual effect it is calculated to produce upon the reader, and cannot be completely ascertained but by experiment” (136). Godwin insisted that “the tendency of any work is a point of great difficulty,” dependent on “the various tempers and habits of the persons by whom the work is considered” (138 and 137). The sense of difficulties surrounding any understanding of a text’s tendency was surely a lesson that had been driven home in the courtrooms he had attended over the previous five years.

The regime of seditious libel exercised a formal influence on satirical texts for most of the century, but in the 1790s there seems to have been an intensified pressure toward forms of displacement and apophasis (Bugg 2013, 127–128) even in lyrical modes far from satire or forms of political allegory (important though both those genres remained for the period in general). In this context, evading legal punishment seems to become intertwined with various forms of guilt in ways that are not easy to disentangle. Thelwall was a practiced exponent of forms of “seditious allegory” (Scrivener 2001), but by the mid-1790s he was also a seasoned lyric poet who could use a sentimental register to stake his politics on his heart. While in prison in 1794 awaiting trial for high treason, Thelwall wrote the poems collected as Poems written while in Close Confinement (1795a). Among them was “The Cell,” written on October 25, 1794, originally published in The Morning Post. Thelwall’s sonnet brings the reader within the space of legal confinement in its opening stanza:

  • WITHIN the Dungeon’s noxious gloom
  • The Patriot still, with dauntless breast,
  • The cheerful aspect can assume—
  • And smile—in conscious Virtue blest! (Thelwall 1795a, 9)

Various critics have noted the poem’s influence on Coleridge’s “This Lime Tree Bower my Prison” (Mee 2009; Bugg 2013). Thelwall’s poem celebrates the power of the imagination—as part of the armory of a virtuous patriot’s dauntless mind—to reach beyond the confinement of the physical body. Coleridge and Thelwall were aware of each other through the campaign against the Convention Bills and by 1796 were in correspondence. Coleridge mentioned reading the prison sonnets in a letter of February 6, 1797: “whenever, I was pleased, I paused, & imagined you in my mind in your captivity” (Coleridge, 1: 307).

By this stage, a distinctive genre of prison poetry was emerging that included the verses of the attorney John Augustus Bonney, arrested with Thelwall in 1794, and The Prison Amusements (1797) of the Sheffield poet James Montgomery, imprisoned in York gaol in 1796 (Bugg 2013, 59–69). In “This Lime Tree Bower my Prison,” the carceral scenario operates in a more domestic circumstance, where the imagination operates to supply to Coleridge’s mind the experience of absent friends on a country walk. The imaginative re-creation seems to more than compensate for the social pleasure itself, possibly the beginnings of an idea of the power of the imagination for Coleridge’s that starts to distance it from his radical opinions of 1795 and struggle free from the claims of history in a way that McGann (1985) and others have identified with a “romantic ideology.” For other critics, any suggestion of bad faith in this regard is underestimating the pressure exerted on literary forms by the legal conditions suffered by writers (Bugg 2013, 6). The second half of the 1790s was littered with proliferating “tropes of gagging and silencing, broken communication, and fractured speech” (Bugg 2013, 5). In this context, the Wordsworthian scenario of interlocutors who cannot make themselves explicit to each other, as in “Anecdote for Fathers,” and “Old Man Travelling,” for instance, seems to bear the historical weight of Pitt’s repression without being able to articulate it.

No single event from the second half of the decade reminded literary men and women of the legal conditions under which they wrote more than the prosecutions of the bookseller Joseph Johnson and author Gilbert Wakefield for publishing the latter’s antiwar pamphlet Reply to some Parts of the Bishop of Llandaff’s Address to the People of Great Britain (1798). Sometime publisher of Coleridge, Godwin, Wollstonecraft, and Wordsworth, among many others, Johnson was a respectable bookseller, far from being intimately connected with popular radicalism, although he had been close to Paine in the early 1790s. Wakefield was widely respected as a classical scholar. Their fates suggested that a literary reputation was not necessarily protection against the desire of Pitt’s government to clamp down on political opinion. Indeed, John Aikin (1801, 229) supposed that the prosecutions of Johnson and Wakefield had been intended precisely “to inspire a wide alarm.” William Blake wrote on the title page of his copy of Watson’s An Apology for the Bible (1796): “To defend the Bible in this year 1798 would cost a man his life / The Beast & the whore rule without controls” (Blake 1988, 611).

Radicalism Revived

Habeas corpus was suspended again in 1798. In 1799 the London Corresponding Society was officially declared illegal. Spence was imprisoned in 1801 for publishing his Restorer of Society to its Natural State (1801). In February 1803 Colonel Edward Despard and his co-conspirators were executed for treason. Kenneth Johnston (2013) has provided us with a detailed sense of how far into the nineteenth century Pitt’s alarm sounded to distort and compromise literary lives to the point of identifying an entire “lost generation.” Blake’s fears of surveillance in 1793 were to be translated into legal reality a decade later, in the summer of 1803, when he was arrested for seditious words, supposedly uttered while throwing a soldier out of his garden in Felpham (Crosby 2009). Although he was acquitted at the trial in January 1804, the experience seems to have intensified the sense of a labyrinthine fallen world that provides the architecture of his late prophecies, replete with courtroom scenes like the one in the first book of Milton (ca. 1804-1811), begun while Blake was at Felpham.

Whatever its effects on polite literature, harassment and paranoia did not silence radical opinion in the Romantic period. Especially after the threat of invasion receded from 1805, radicalism revived, and with its revival came a new wave of prosecutions in an attempt to control the pressure for change. There was a spike in the number of cases for seditious libel heard at the King’s Bench in 1808–1811, possibly stimulated by the strict church and king complexion of Spencer Perceval’s ministry (Harling 2001, 125). During this period William Cobbett was imprisoned in an attempt to stem the popular influence of the Political Register he had begun in 1805. Another casualty was Peter Finnerty, a veteran Irish journalist who had attacked Viscount Castlereagh in a letter published in The Morning Chronicle, accusing him, among other things, of encouraging the use of torture against the Irish in 1798. Castlereagh brought a personal libel action against Finnerty, justified as “a public duty” (quoted in Wright 2014, 677). Finnerty turned the courtroom into a show, introducing affidavits to the truth of his claims about Castlereagh’s policies in Ireland. Ellenborough intervened from the bench, asking Finnerty to find less offensive materials for his defense. Despite being found guilty, the journalist was able to use the court as a platform to mock the idea that truth was no justification for a libel and effectively fix a public image of Castlereagh that followed him to his death by suicide. The whole performance was captured in The Case of Peter Finnerty (Finnerty 1811) and garnered considerable public support, not least from Poetical Essay on the Existing State of Things, written by the Oxford undergraduate Percy Bysshe Shelley (1811). The same critical wave breaking over public figures included the attacks published in The Examiner conducted by the Hunt brothers, John and Leigh. Leigh Hunt was prosecuted for a libel on the Prince Regent in March 1812. Something of the laxness of the carceral regime of this period is illustrated by the fact that he was able to secure two rooms in Surrey gaol, one of which was famously decorated with a rose-patterned wallpaper. If this suite of rooms was more comfortable than those allowed most political libelers—often thrown in with ordinary felons—Hunt’s fate also illustrates some of the psychological effects of government harassment. In later life he was haunted by the idea of “the chains of felons clanking in my ears” (quoted in Harling 2001, 120).

This wave of prosecutions also started to see the systematic use of the law on blasphemous libel to control political opinion, possibly in the belief that it would mask the motives of the government. In practice, the prosecutions only served to open up a rich archive of Protestant martyrology on freedom of conscience that defendants eagerly exploited to give their cause its own tincture of righteousness in court (Wood 1994). In 1797 blasphemous libel had been used to prosecute the bookseller Thomas Williams for publishing Paine’s Age of Reason (when Erskine appeared in court for the Crown). The guilty verdict there made it hazardous for anyone to bring out Paine’s book, but in 1812 the veteran Daniel Isaac Eaton published an edition of its third and last part. After a trial in which the judge, Lord Ellenborough again, intervened several times to stop Eaton giving his prepared defense, the sixty-year-old publisher was sentenced to eighteen months’ imprisonment and forced to stand in the pillory. The result was an opportunity to represent Eaton as a martyr to a malignant religious bigotry, a cause again taken up by the youthful Shelley, this time in his Letter to Lord Ellenborough (1812).

The Political Showmen at Home

The gathering unrest after Warerloo saw the government eventually take on the revivified reform movement in a more coordinated way. In February 1817 Lord Sidmouth explained the delay to the House of Lords: “These publications were drawn up with so much dexterity—authors had so profited by former lessons of experience, that greater difficulties to conviction presented themselves than at any former time” (quoted in Harling 2001, 125). Habeas corpus was suspended in February. In July 1817 the trials of T. J. Wooler (Wooler 1817) took place, and then in a major media event, William Hone’s three trials for blasphemous libel (Hone 1818). Both sets of prosecutions were closely followed by the press, exploited by the defendants for publicity, and celebrated by copies of the proceedings that played up the mockery of the whole legal machinery. In court, Wooler used the laughter of the gallery as proof that his satires were entertainment rather than seditious libel (Gilmartin 1996, 124). Hone was prosecuted for blasphemous libel found in three parodies: The Political Litany, The Sinecurist’s Creed, and John Wilkes’s Catechism. He turned the three trials into a political show, frequently reducing the courtroom to hilarity and driving the judges to fury. When the first trial resulted in an acquittal, Ellenborough, now lord chancellor, took over as judge himself, but with no better effect. Hone was acquitted in all three cases.

The requirement of the legal process that the offending passages be read aloud in court proved to be a humiliation for the prosecution, a fact the printed versions of the trial brought out by Hone took great delight in documenting:

[These parts of the parody produced an involuntary burst of laughter from the auditory, which evidently proceeded, not from a wish to disturb the Court, but was really the irresistible impulse arising from the matter of the parody.]

Lord ELLENBOROUGH Where are the Sheriffs? I desired their attendance, and they shall attend.

The UNDER-SHERIFF My lord, I have sent for them; but they live a great distance from this and they have not yet arrived.

Lord ELLENBOROUGH Very well.

Mr. HONE joined the Court in reprehending in strong terms this interruption of the order of the proceedings.

The ATTORNEY-GENERAL resumed as follows : Will any one now say that the dangerous, the impious and profane publication before you, has not been the means of raising scoffing among the scoffers ? I will ask, if there can possibly be a stronger proof of its dangerous effects ? If the social bonds of society are to be burst asunder by the indecent conduct of a rabble, the Court may as well discontinue its proceedings.

(Hone 1818, 74–75)

Despite the attorney general’s censure, the court had been made to look both foolish and ineffectual. Throughout the trial Hone presented himself as someone being prosecuted for political offenses under the guise of protecting Christian principles. A member of the London Corresponding Society in his youth, he had obviously been a student of the exploitation of the slipperiness of language in the libel trials of the 1790s. His defense turned on the proper understanding of parody as a literary form: “There were two kinds of parodies; one in which a man might convey ludicrous or ridiculous ideas relative to some other subject; the other, where it was was meant to ridicule the thing parodied. The latter was not the case here, and therefore he had not brought religion into contempt” (Hone 1818, 23). He had plenty of examples to support his definitions, including some from churchmen, and, deliciously, from the minister, George Canning, whose “The New Morality; or, The Installation of the High Priest” (1798) had been illustrated by James Gillray when it was originally published in the Anti-Jacobin Review and Magazine. Most of the informations filed in the King’s Bench in 1817 had been against vendors of Hone’s pamphlets. The majority of these charges were dropped after his acquittal. Only two ended with successful prosecutions (Harling 2001, 125).

Prosecutions resumed after the Peterloo Massacre in 1819. Faced by an outpouring of criticism, the government decided it had to do something against what it perceived as the printed sources of popular discontent. Sidmouth believed that “the present critical state of the country” had its source in “the audacious licentiousness of the press” (quoted in Harling 2001, 126). Backed up by the introduction of the Six Acts, the ministry embarked on a series of prosecutions, with at least fifty indictments being filed at the King’s Bench in 1819–1820. Of the Six Acts, the most effectual was probably the Publications Act, which put an end for a while to the two-penny press by imposing a 4d stamp, among other restrictions. Other aspects of the legislation, including the Blasphemous and Seditious Libels Act, proved less effective, although the government pursued Richard Carlile’s various attempts to publish Paine’s Age of Reason with something approaching mania. When he was found guilty, Carlile found others to take his place, including his wife Jane and younger sister Mary Ann, and insisted on reprinting versions of each of the trials, to the government’s fury. Entering the whole of Paine’s Age of Reason as part of his defense allowed Carlile to reprint it in the proceedings that he issued in cheap parts (Harling 2001, 127).

By late 1819, writing in disgust after Carlile’s trial, Shelley wrote to Leigh Hunt at The Examiner to condemn the government for driving the country to the edge of “military & judicial despotism” (Shelley 1964, 143), but the uncertainty of language still rendered the libel laws an inefficient instrument for the attempt. “Libel trials,” as Kevin Gilmartin (1996, 115) has described it, were becoming “a juridical test of the relationship between the printed word and the world, staged before radical audiences that gathered to follow the proceedings and support embattled writers and editors.” Hone and his fellow radicals continually denied that there was any such thing as a libel. The law offered no clear definition as a guide to writers and publishers. Cobbett even claimed to prefer the more definite boundaries of prepublication censorship (Gilmartin 1996, 116–117). Parody, brilliantly exploited by Hone, who went on to research a history of the form, created particular problems when it came to ascribing fixed meanings in the innuendos, but the problem was more general. Faced with the illustrated squibs and mock nursery rhymes like The Political House that Jack Built (1819), produced by Hone with George Cruikshank during the Queen Caroline affair, there was little the government could do if it were not to appear ridiculous. In this context, the government increasingly had to rely on legislation covering unlawful assembly and the economic bridle of the stamp duty to control political opinion (see Harling 2001 and Lobban 1990). In the process, literary language, perhaps inevitably, came to be understood as offering a practical immunity from prosecution.

It was in these years that Coleridge developed a theory of imagination that distanced the “poetic symbol from the civic or the political realm” (Leask 1988, 160). Barrell has made a convincing argument for understanding part of this process as located in anxieties about treasonable imaginings of the king’s death, specifically relating to Coleridge distancing himself from any political implications to be found in his “Fire, Famine, and Slaughter,” originally published in The Morning Post in 1798 (2000, 644). Coleridge had republished this poem in 1817 with an “Apologetic Preface” in an attempt to save himself from the indignity Robert Southey was to suffer when Hone published Wat Tyler (Barrell 2000, 645). Arguably a more pervasive anxiety for authors throughout the period were the nebulous legal implications of the idea of “tendency.” Coleridge would have known Godwin’s use of the term in his “Of Choice in Reading” essay to draw distinctions between something like intention and reception. Coleridge’s discussion of Wordsworth in Biographia Literaria turns on an argument about the “natural tendency” (Coleridge 1983, 1: 70–71) of the poet’s imagination in the context of “the unexampled opposition which Mr. Wordsworth’s writings have been since doomed to encounter.” Coleridge’s account identifies this natural tendency with Wordsworth’s “character of his mind” (82), an innate quality distinguished from any particular performance and certainly from legal definitions that defined tendency as an effect of public discourse.

Despite Coleridge’s attempts to shield the imagination from its effects, the law of libel continued to cast an influence on literary production in unexpected ways. When Southey attempted to halt the pirating of Wat Tyler by seeking protection of his copyright at the High Court, Lord Chancellor Eldon was faced with a defense that read back to him his own opinion that there could be “no property in what is injurious” (quoted in Quarterly Review [April 1822]: 133). As a seditious work, Southey’s poem could not be protected by the court against piracy. The same principle ensured the failure of John Murray’s attempt to protect the copyright of Byron’s Don Juan in 1819. When Murray brought out Cain in 1821, he even faced calls in the press for his indictment on the charge of blasphemous libel. Byron affected to be confused by the very idea: “How—or in what manner you can be considered responsible for what I publish—I am at a loss to conceive” (Byron 1979, 9:30). He had forgotten that the issue was the “tendency” of the publication, not his intentions, a point made plain by the Quarterly Review ([April 1822]: 127–128) in an article on the “poison” it would spread to thousands of readers. Eldon refused to protect Murray from piracy, but the publisher’s Tory friends ensured there was no trial for blasphemous libel. Still, the reign of libel was not quite over. In January 1824 John Hunt, lacking Murray’s friends in high places, was found guilty of libeling the late George III for publishing Byron’s Vision of Judgment (see Marsh 1998, 104). “The first criminal trial for publishing a poem,” according to Marsh, did not stop Carlile from quickly pirating Hunt’s edition.

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