Tract No. 220. 


SEDITIOUS OFFENCES 


BY 

E. J. C. NEEP 
(Barrister-at-law), 

'VITH AN INTRODUCTORY NOTE BY 

PROFESSOR HAROLD J. LASKI. 

PUBLISHED AND SOLD BY 

THE FABIAN SOCIETY. 

PRICE THREEPENCE


LONDON : 
THE FABIAN SOCIETY, 25 TOTHILL STREET, WESTMINSTER, S.W. I. 


FIRST EDITION, O CTOBER, 1926. 



INTROD UCTORY NOTE. 

OCIALISM is above all a challenge to the existing system of 
property. If its theses are translated into facts, it is incompatible 
with the existing distribution of wealth, the existing industrial 
technique, and the existing leisure-class. Propaganda on 
its behalf, seemed, when the Fabian Society was founded, an 
amiable weakness to which no attention need be paid. There was 
little desire, because the existing order seemed so secure, in anyserious way to molest its exponents. To-day the situation has 
changed. Socialism is the recognised alternative to Capitalism, 
and the latter syst m has now no sure prospect of survival for any 
long period outside the United States. It has been demonstrated 
in Russia that revolutionary communism may, at a heavy price, 
be imposed upon a people by force. Vistas such as these have 
aroused deep indignation. They threaten an existing order as 
Lincoln's decision to relieve Fort Sumter threatened the securityof the Southern slave-owners. The problem for those who live by 
the present system is to decide upon the means by which their 
defence is to be organised. 

There is in the State a party, of which Sir V•iilliam Joynson-
Hicks eems the accredited representative, who insist that criticism 
of the existing order is tantamount to original sin. They are 
prepared to invoke against it the musty legal weapon of the panic 
induced by the French Revolution, and to imprison where they 
are unable to argue effectively. Englishmen in the past have held 
dearly their right to free discussion ; and a long experience of its 
benefits has made them a little forgetful of the tenuous legal basis 
upon which it rests. It has seemed necessary to the Fabian Societyto recall the character of the present law, and the points in which 
reforms seem essential. Since the Society stands for a freedom W 
of opinion limited only by the duty of good manners to your neighbour, 
on the one hand, and the contingency of imminent disorder 
as a direct result of speech on the other, the tendencies which 
Sir William Joynson-Hicks embodies seem to it at once unfortunate 
and retrograde. 

For they are the natural weapons of a panic, and they have 
not even the merit of originality. Every critical age of history 
has seen their resurrection, and their failure, jnst as the succeeding 
perioci of calm has invariably cond mned their use. No one now 


4 

dd •nd<> Ut · policy against supp s d sedition into which the ignorant 
rlwtoric f Burk • tempt cl his tcrrifi cl g<•ncration. No one now 
supposes tltat th · alculat cl pprcssion of J>ol>i donostev was any 
ans"wr to the grievances he dislik ·d to h ar. Bismar k's gaols 

oulcl n<;v<·r imprison th · principl ·s of , o ialism. The llousc of 
· mmons that expelled John Wilkes only announc ·d its own 
degrada tion. 

H yl'l nn~tins true that thought cannot be 1 rokl'n by f ar and 
its instttmwnt. ; the most the can do i· l drive it underground. 
N 11l' will bcli' t' in the existing ordrr, save th c who hnve an 
int 'l'L'Sl in maintaining it, unkss il an an. wcr by argument lhr 

rilirism of its ppon<.•nts. Oth •rwi c, assurt'lly, it repr• <·nts a 

credo quia absurd11111 whi ·h thos<.' nly will , crept whom il pays to 

d It is this, above all, whi ·h make · in •xp di•nt the .tlcmpl 

legally to dassif ' icl<.•as , right and wr ng. Ev ry social 01 der 

b •gins to ourt d ·slructi n exactly wh re it p stulat s its own 

inbllibilit Lq~islati n may driw th • timid to a quic nee, 

but it lriv •s th e hold to cksp •rati n. 


inv Ives th us• f th ourts 
. nd it. pcration gives t 

l t does ('\'<.'n n1or •. 

utT<.'nc · th 'Y could rarely hope 

oth rwi <.' to <tttain. Th f lly of very intclle .tual c nsorship lies 

cxactl_ in this, th. t it ar \IS<.'S in ug tlw natural curiosity for tht' 


5 

forbidden. )f the clergy had left Darwin alone, it would have been 
unnecessary for Huxley to purvey his doctrine in popular form. 
If Tsarism had not penalised the theory of constitutional government, 
it would not have led directly to the triumph of Lenin. 

These are the maxims of elementary political prudence. But 
there is a wider case for their observance which, in the present 
temper of the time, may too easily escape our notice. What we 
fail consistently to realise is how much the overwhelming force of 
social habit weighs against novelty, however right or true. We 
live by our routines. We believe firmly in that to which we have 
grown accustomed long after it has been found to lack foundation 
in the logic of fact. It cannot be otherwise. The work of discussion 
is so slow that it can only transform piecemeal the habits 
of our social inheritance; it has to eat its way through an iron 
wall of prejudice and inertia. Yet few governments have the 
wisdom to allow their principles to be discussed ; they feel, like 
General Cavaignac, that they are lost if theyhave to justify themselves. 
Yet that is to forget, in turn, that their principle cannot face discussion, 
and that discussion rarely turns to action unless it reflects 
some neglected human need. 

The real argument, in fact, against the temper of Sir William 
Joynson-Hicks and his like, is that only a wide toleration can give 
us an accurate index to the desires of men. And, after all, at least 
in a democratic society, the test of wise government is responsiveness 
to those desires. If we allow that type of person to prevailin government, who has strong opinions, and finds the engines of 
the State the easiest means of propagating them, we either produce 
a tragic inertia or a violent revolution. In every society there are 
one-idea'd men who, posing as its saviours, develop a mania for 
persecution. If they make use of the power of the State, they 
either destroy the honesty of their opponents or feed higher the 
flames of vengeance. But they have nowhere produced conviction. 
Even, indeed, if their success could be as~umed, it would be the 
success of intellectual starvation. It is the failure of such men, 
on the grand scale, which produced the Russian Revolution. 

The only safeguard of social structure is, in short, its ability to 
admit criticism. We must cease to think that wisdom is permanently 
resident in any group of men or principles. That is the 
natural desire of little minds tired after a great effort of will, and 
terrified at the forces that effort has called into being. Truth, like 
Art, is a matter of dirt and sweat. It comes only from the clash of innumerable 
men and countless opinions. Some fragment maycome from a West Indian orphan who finds his way to the staff of 
a revolutionary army ; another from a half-starved German who 


6 

is driven like a hunted deer from the capitals of Europe. The 
vision is never whole, nor is it immediate. It never come!', even 
in the most inchoate form, save when the mind is free to play 
untrammelled with the facts of life. 

A temper of persecution may delay for a moment the organisation 
of forces hostile to the present system ; assuredly it rather 
guarantees than prevents their ultimate onset. It brings to the 
army of the discontented converts innumerable whom it might 
not otherwise win. It gives fame to obscurity and martyrdom to 
the undeserving. It is a blind weapon, which strikes without 
knowledge. Nor is that all. An oppressed cause always solicits 
support from men of undefined belief who yet care for freedom. 
Communism in England, for example, makes its way less because 
of what is said on its behalf than because Sir Wil\iam Joynson-
Hicks has no answer to its exponents save prison. The cultivation 
of openmindedness is the only way to temper by wise moderation 
the victory of extremes. An eporh of panic does not pass into the 
calm of co-operative endeavour by a blind refusal to admit the 
existence of wrong or by persecution of those who seek, however 
unwisely, solutions we think mistal<en. Thought is the one 
weapon of tried utility in a difficult and comple:\" world; w1thout 
it, we are as sailors on an uncharted sea. But thought has no soul 
save where it has freedom. Its conquest and preservation are the 
central human task. We cannot abandon it to men who are 
ignorant of its meaning and careless of its possibilities. 

HAROLD J. L AS KI. 


SEDITIOUS OFFENCES 

By E. ]. C. NEEP, Barrister-at-Law. 

I. 
I
I
T must be emphasised at the outset that the word' Sedition as 
used and understood by the popular mind in connection with 
the matters to be discussed in this tract has rro legal significance. 
The law knows nothing of Sedition. In the words of Mr. Justice 
Stephen (1): "As for Sedition itself, I do not think that any such 
offence is known to the English Law." Instead, it prefers to 
classify those offences against internal tranquility which are not 
accompanied by, or which do not lead to, open violence, and which 
are loosely described as Sedition, as Seditious Offences. In this 
way the general heading is found to be divisible into three groups, 
namely :


Seditious Words, 
Seditious Libels, and 
Seditious Conspiracies, 

according as to whether the Seditious Intent-the essential part of 
the crime-manifests itself by means of the spoken word, the 
written word, or simply by a conspiracy on the part of certain 
persons. But in each case it is presumed that dissatisfaction 
exists with the Government of the day, together with a desire to 
censure those responsible for its carrying on ; and the actual offences 
consist in the display of such dissatisfaction through one of the 
above-mentioned channels. 

The accepted legal definition as it at present stands in relation 
to these three heads and to the question of what is editious intention 
is as follows :


(r) Seditious Words and Libels.(2) 
" Everyone commits a misdemeanour who with a seditious 
intention speaks any words or publishes anything capable of being 
a libel. If the matter published consists of words spoken, the 
offence is called the speaking of Seditious Words. If the matter 
so published is contained in anything capable of being a libel,* 
the offence is called the publication of a Seditious Libel." 

(') Stephen's History of the Criminal Law, Vol. 2, p . 298. 

( 2) Stephen's Digest of the Criminal Law, Article g6. 
• The words, "capable of being a libel," refer to the writing, caricature, 
&c., which in law is an essential ingredient of libel. 

8 

(z) Seditious Conspiracy.(1) 
" Everyone commits a misdemeanour who agrees with any 
other person or persons to do any act for the furtherance of anyseditious intention common to both or all of them. Such an offence 
is called a Seditious Conspiracy." 

(3) Seditious Intention. (2 ) 
" A Seditious Intention is an intention to bring into hatred 
or contempt, or to excite disaffection against the person of, His 
Majesty, his heirs or successors, or the Government and Constitution 
of the United Kingdom, as by law established, or either House of 
Parliament, or the administration of justice, or to excite His 
Majesty's subjects to attempt otherwise than by lawful means, 
the alteration of any matter in Church or State, by Jaw established, 
or to incite any person to commit any crime in disturbance 
of the peace, or to raise discontent or disaffection amongst His 
Majesty's subjects, or to promote feelings of ill-will and hostility 
between different classes of such subjects. 

An int ntion to show that His Majesty has been misled or 
mistaken in his mea ures, or to point out errors or defects in the 
Government or constitution as by law established, with a view to 
their reformation, or to excite His Majesty's subjects to attemptby lawful means the alteration of any matter in Church or State 
by law established, or to point out, in order to their removal, matters 
which are producing, or have a tendency to produce, feelings of 
hatred and ill-will between classes of His Majesty's subjects, is 
not a Seditious Intention." 

(4) Presu!'llption as to Intention. (3 ) 
" In determining whether the intention with which any words 
were spoken, any document was published, or any agreement was 
made, was or was not seditiou , every person must be deemed to 
intend the consequence which would naturally follow from his 
conduct at the time, and under the circumstances in which he so 
conducted himself." 

This position of the law has only been reached as the result 
of an historical development extending over a long p riod of time 
and influenced by a variety of causes; and which, in it final analysis, 
ha oscillated between two extreme points of view as to the properrelation of a ruler to his subjects. On the one hand there have been 
those who have regarded the ruler as being alway , in every way, 
superior to, and above and beyond, his subjects. In which case, 
even in the event of a mistake made by him, the subject may at 

( 1) Stephen's Digest of the Criminal Law, Article 97· 
(') !bid Article 98. 
(') I hid Article 99. 

9 

the most demonstrate such a lapse only with the utmost respect 
and with no censure aimed at lessening the existing authority.
On the other hand, a rival school of thought has regarded the ruler 
simply as an agent or servant ; presupposing, therefore, an inherent 
right of criticism; and reserving, by the very nature of the definition, 
a right to depose him or to remodel his household, i.e., the con7stitution, as and when it may be desirable. Clearly, in this latter -t 
case, there can be no such things as Seditious Offences in the sense 
in which the term is understood to-day. 

In the result, the present state of the whole question represents 
a compromise between these two extremes, and a compromise 
which is typically English ; but at the same time, as will be seen 
subsequently, it has not been reached without a vast expenditure 
of blood and tears, of oppression and cruelty, and of bitter and intense 
suffering. The very names in the reported cases-names 
like Paine, Cobbett, Burdett, Home Tooke, or O'Connell-fill the 
mind with thoughts of some of the blackest days in this country'shistory, and speak still of the struggle which has taken place to 
obtain even the existing position ; and with the memory of another 
case in our own time still fresh it must be obvious that the end, 
the position of final development, is not, and cannot be, yet. 

II. 
There is no date at which Seditious Offences came suddenlyinto being. Their origin is obscure ; but it seems probable that 
they were developed in the first place by the extension of the then 
existing Jaw along two separate lines, and that these two independent 
developments were subsequently blended into one. These two 
sources were Treason and Libel. Treason, from a very early date-
certainly from the Statute 25 Edw. Ill. c. z-was a statutoryoffence, and, in addition, required the proving by two witnesses of 
an overt act. As a consequence, a number of borderline cases 
began almost immediately to appear-generally where violent 
language was uttered against the king-which in spite of all the 
efforts of the lawyers could not be squared with the requirements 
of the statute. These cases were known as "Near Treason "; and 
to deal with possible contingencies of this nature it was commonly 
the practice in early days to make express statutory provision. 
For this reason many of the early cases of seditious words are found 
to be classed as "Near Treason,"·and convictions, as will be seen, 
were at first almost invariably obtained under special statutes. 
In this way the connection with Treason can be traced well into the 
17th century. 

The second line of development, namely Libel, occurred through 
the early subdivisions of libels into those uttered against ordinary 
persons and those uttered against great men and Magist~ates. 


IO 

This differentiation was well recognised by Coke and was subsequently 
acted upon by the Star Chamber. Only by the end of the" 
17th century were Seditious Offences, as we understand them to-day, 
a clearly defined class of crime ; and only then can they be regarded 
as having shaken themselves free from the ordinary forms of libel 
on the one hand, and from those hybrid offences known as Near 
Treasons on the other. 

The first mention in a vague kind of way of Seditious Libel 
is by Bracton (1) in a general enumeration of crimes and punishments 
at the beginning of his book De Corona, speaking of : "facta 
puniuntur . . . . ut jalsa et libelli jamosi." 

The next definite instance of a quasi-Seditious Offence is a 
provision of the Statute of Westminster(2) : 
"Forasmuch as there have been often times found in the 

_ country (devisers) of tales whereby discord or occasion of discord 
has many times arisen between the king and his people or greatmen of the realm, for the damage that hath or may therefore ensue, 
it is commanded that henceforth none be so hardy to cite or publish 
any false news or tales whereby discord or occasion of discord or 
slander may grow between the king and his people or the great 
men of the realm ; and he that doth so shall be taken and left in 
prison until he hath brought him into the Court which was the first 
author of the tale." 

There are no reports of any convictions under this Act. 

The first reported case which is in any way a seditious offence 
is Udall's case (3) in the reign of Elizabeth. Here, Udall, a Puritan, 
was indicted for" That he ... did maliciously publish a slanderous 
and infamous libel against the Queen's majesty, her Crown and 
dignity." He was tried under 23 Eliz. c 2 (rs8r), which made it 
a felony "to devise, write or print or set forth any book, &c., to the 
defamation of the Queen or the stirring or moving of any rebellion." 
-A very typical example of the way in which· Seditious Offences 
were at first based on particular statutes. The only question left 
to the jury to decide at the trial was the mere technical one as to 
whether publication had taken place or no ; the judge telling them 
that the law was clear. Eventually they brought in a verdict of 
guilty, but only after repeated pressure from the judge. This is 
the first indication of the struggle which was afterwards to take 
place throughout the r8th century and right down to the passingof Fox's Libel Act, as to the true scope and function of the jury in 
these cases ; the judges continually contending for the sole right 
to decide questions of law. Not until the passing of Fox's Act in 

( 1} Lib. iii., Chaps. V. and VI., Vol. ii., pp. 15o-16o. 
( 2} (1275) 3 Edw. I. c. 34· 


( 3) I St. Tr. 1271. 

II 

I792 was the whole position made clear and given statutory definition, 
and only then was the right of juries to consider the whole 
question of intent in respect of Seditious Offences made absolute. 

Some few years later, Coke, in his passage " de fanwsis libellis " ( 1) 
stated the law as it then stood in respect to libel with reference to 
its bearing on these particular offences. He there defined Libels. 
as falling into two classes-against private persons, and against"Magistrates or public persons," and remarked "if it (the libel) be 
against a magistrate or other public person, it is a greater offence." 
He also pointed out that it was immaterial from the legal point of 
view whether the Libel was in fact true or false-in other words 
that truth was no defence. 

It was upon this definition that the Star Chamber acted until 
its abolition, and the King's Bench during the late 17th and the 
whole of the 18th century ; and in fact this is actually the only 
definition of a Seditious Libel until Fox's Libel Act of 1792. 

In 1615, in St. John's Case (2}, the Star Chamber imposed a fine 
of £s,ooo for words spoken against the King. This is a good example 
of the connection between Seditious ·words and Treason and the 
late date at which it is still traceable, for the words spoken, which 
concerned a benevolence, were expressly designated by the Court 
as being "Near to Treason." 

It is to be noted that there was no jury in the Star Chamber: 
the Court decided both Law and Fact. The importance of this lies 
in the fact that when the Star Chamber was abolished and Seditious 
Offences were dealt with by the King's Bench Courts, it was this 
which fortified the judges in their insistence that in charges involving 
Seditious Offences the scope of the jury ought to be limited 
strictly to questions of fact. 

During the Commonwealth and immediately after the Restoration 
trials for Seditious Offences continued to come before the Courts, 
but were based chiefly on particular Statutes. In R. 11. Field(l) 
a distinct connection between seditious words under the modern 
definition and Treason is still discernable. Even at this late date 
Field was indicted under a Statute (as in Udall's Case) of 13 Car. 2 
for using " treasonable words " in connection with religion. He 
was fined £soo. 

The functions of juries as interpreted by the Bench in these 
cases at the close of the 17th century are clearly stated in Barnardiston's 
Case.(4) In 1664 Sir Samuel Barnardiston was tried 

( 1) Vol. iii., p. 254· 
( 2) Noy. 105. 
( 3) (r662) 1 Sid. 69. 
( 
4) 9 St. Tr. 1334· 

12 

on an information filed by the Attorney General for publishing a 
Seditious Libel in the form of four private letters dealing with 
gossip and rumours of the day. Lord Chief Justice Jeffries who 
tried the case told the jury that they had to deal simply with a 
question of fact : " Were the letters written ? " If so, they were 
(in Jeffries' opinion, which was not for the jury to question)," factious, 
seditious and malicious." He, therefore, scouted the question as 
to whether it might not be necessary to prove Seditious Intent 
(the line of argument so successfully developed by Erskine a century 
later), and declared that the letters, "as it were, trod on or 
near the borders of High Treason itself." And this of four letters 
which to-day would be dismissed as being inordinately dull! Finally, 
the jury having returned a verdict of guilty, the defendant was 
fined the immense sum of {10 ,000. 

During the reign of William III. the judges took another 
opportunity of con olidating their position. This arose out of the 
case of R. v. Beere(1). where it was held that in a trial for Seditious 
Libel, the words complained of must be set out in the indictment 
" according to the tenour " and not with reference to their effect, 
the reason being that under the former method they remained 
matter for the consideration of the Court ; while in the latter 
event they would have to be left to the jury. A possible loophole 
was thus effectively closed. 

The existing position was again emphasised in 1704 in Tutchin's 
Case(2). Tutchin was convict d of n seditious libel publi hed byhim in a political paper caller the Obsmator attacking the Ministry 
on the grounds of corruption and mismanagement. Lord Holt, 
the presiding judge, directed the jury that as a matter of law the 
paper was a libel, and that they were simply to find aye or nay on 
the question of publication. This they did, and the direction was 
never questioned. Tutchin, it might be mentioned in passing,
would seem to have been a singularly unfortunate person, for after 
:Monmouth's Rebellion he had been sentenced by Jeffries-evi<
iently in a more violent mood than usual-to be imprisoned for 
seven years and whipped every year through every market town 
in Dorsetshire, which, in point of fact, meant a whipping everyfortnight for seven years.(3) 

A cmious and amusing trial took place in 1719.(4) Hendley, 
the Vicar of Islinglon, and some Jacobite friend had taken a number 
of school children-twenty boys and thirty girl --on tour in the 
country as a kind of living background for a ourse of chflrity 

( 1} (t69) 12 Jllod. 219. 

( 1) 14 t. Tr. 1095. 
( 3) Stephen's H tslory of CYtmlnaJ Law, Vol 11 ., p. 317. 
(') R. v. Hendley, 11 Mod. 221. 

sermons. An indictment was now preferred by the Crown alleging 
that the whole thing was a seditious and wicked attempt to extort 
taxation illegally ! The two defendants were solemnly convicted 
and fined 6s. 8d., and the matter dropped. But the case has a 
certain significance as showing how easy it was then (and the same 
thing applies to-day although in a less measure) for an Executive, 
1f it wished, to so twist and stretch the definition of Seditious J 
Offences as to bring within the net cases which by no stretch of 
the imagination would be regarded in normal circumstances as 
containing any element of Seditious Intent at all. 

An interval of 12 years produced the Case of R v. Franckiin(1) , 
a prosecution in respect of a newspaper known as the Craftsman 
published by the Opposition for the purpose of criticising Walpole. 
The article complained of was said to have been written by Baling-
broke and censured the Ministers in connection with the lately-
concluded treaty with Spain-its whole tone being that of a 
moderately incensed leader in, say, the present-day Times. When 
the hearing came on the trial became a huge social event, and the 
Court was packed. Lord Raymond, C.J., who presided, ruled 
emphatically that the only question for the jury was the single 
<Jne of publication. As he remarked : " then there is a third thing, 
to wit, whether these defamatory expressions amounted to a libel 
or not? That does not belong to the office of the Jury, but to the 
office of the Court . . . . so Gentlemen, if you are sensible that 
the defendant published the Craftsman of the 2nd January last . .. 
you ought to find the defendant guilty." He was so found. Here, 
the principle for which the judges had contended so vigorously is 
.quite clearly and unequivocally set out. 

In 1752, Owen(2) a printer, was prosecuted for a libel on the 
House of Commons. His counsel took the line that as his publication 
had not been proved to be malicious or false the jury should 
acquit. Lord Chief Justice Lee, however, directed a conviction if 
the jury was satisfied that publication had been proved. This they 
refused to do in spite of repeated pressure from the Bench, and in 
the end their verdict of not guilty generally was accepted. Lord 
Mansfield, commenting on the case, says that it is the first occasion 
since the trial of the Seven Bishops where a jury had exercised 
their undoubted power to return a general verdict of not guilty in 
a case of Seditious Libel. It is also the first sign-and this is 
infinitely more important although Lord Mansfield failed to notice 
it-that the Bench's doctrine, in regard to Seditious Offences, was 
at last beginning to be definitely challenged. 

(') (I73I) I7 St . Tr. 626. 

(2) r8 St . Tr. 1203. 

14 


In 1770 excitement agam ran high ov r the trials in the matter 
of the Junius Lctt rs.(1) Three booksell rs, who had sold the lett rs 
-Almon, Mill r and Woodfall-were in turn harg don information 
before Lord Man fi ld with having published editions Lib ls. The 
prosecutions w re conducted with gr at vehemen e by D Gray, 
th Attorney-n ral, assisted by a dazzling array of rown Counsel. 
Almon was convicted, Miller acquilt d, and Woodfall found guilty 
of publi hing only. In the !alter as a new trial was ordered on the 
ground of the inadequa y of the verdi t, but the proceeding were 
afterward dropp d. 

In Almon's ase the Attorney-Gen raJ ubmitt d to the jury 
that he was oblig d to satisfy them on two points, viz. :


(1) That the publication con ern d the King; hi administration 
of Governm nt ; th publi affairs of the nation ; 
th gr at offi ers concerned in ov rnment ; and the 
m mbers of th House of ommons. 
(2) That publi ation had in fact taken place. 
Th D fen con rn d its If sol ly with th qu stion of publi 
ation. 
Lord Mansfield told th jury that they had two matters to 
consider :


(1) Publi ation. 
(2) Wh th r the dots and dashes in the I tter showed th 
interpretation ought to be put upon them (thi referred to 
the practi ommon at that tim of printing the fir t and 
last I tt rs of nam s and substituting a t ri k for the 
mis ing 1 tler ). 
The jury r turn d a verdi t of guilty. 
In Mill r' ase th Soli itor-G n ral, Thurlow, prosecut d 
with xtr m bitt rness, and erjeant Glynn-the radi al lawy r, 
who afterwards appear d for Wilk s-defended. The def n e 
atta k cl Thurlow's int rpretation of th letters as being editious 
and malignant, and des ribed th m a containing manly, who! some, 
and dutiful advice to the king. 
Lord Man field again ought to onfin the jury to the two 
que ti n of publication and innuendo; but thi time th y were 
1 ss pliabl than at th trial of Almon. A th ir f llows had done 
18 years before in Owen' case, they r fu d to be limit d in their 
consid ration of the case, and und r cover of a gen ral verdict of not 
guilty showed v ry cl arly that they were not prepared to a ceptthe Judge' ruling. The verdi t a found was p rfecUy sound, 
and to the great disgu t of the rown lawyers ould not be upset. 

{ 1) R. v. Almon, 20 St. Tr. 8o3. 

R. v. 1\liller, 20 St. Tr. 870. 
R. v. Woodfall, 2 0 St. Tr. 920 . 

15 

The verdict in \\'oodfall's case was guilty of publi hing only-
a kind of half-way position between that in Almon's and Miller's 
cases. An application for a new trial was granted, but the matter 
was not proceeded with. 

All three cases produced a profound impre sion on the public 
mind, a great deal of attention being directed to the unsatisfactory 
state of the existing law under which the wide d finition of Seditious 
Offence could be u ed by a d signing Executive to inaugurate whenever 
they desired, a veritable r ign of terror ; while the protection 
whi h a jury might ordinarily be able to provide if public opinion 
was not prepared to back the Ministers was completely removed 
a carding to the judicial doctrin · that publi ation and innuendo 
were the only matters for the jury's con ideration. The Judges, 
in oth r words, remained in actual fact the ol deciding body as 
to the m rit or otherwise of a particular ea e once proceedings for 

edition Offenc s had been launched. 

hortly after the pro ecution had b en concluded Lord Mansfield's 
direction to the juries were sev rely attack cl in both Houses 
of Parliament. By way of cl f nding his position he had left 
with the Clerk of the House of Lord a memorandum entitled a 

" Copy of the unanimous opinion of the Court of King's Bench in 
the case of R. v. Woodfall," which showed thal his action was 
thoroughly supported by his brother judges. In connection with 
this document, Lord Camden, in the Lords, propound d a seri s of 
questions expres ing the popular view of the law in this connection 
as it was in proces of being administered, and seeking to show the 
gr at hardship which such a practi e entailed. These were :


(I) Does the opinion mean to declare, that upon the gen ral 
issue of nol guilty in the case of a Seditious Libel, the 
jury have no right by law to examine the innocence or 
criminality of the paper if they think fit, and to form their 
verdict upon such examination ? 
(2) Does the opinion mean to d clare in the case above-mentioned, 
where the jury have delivered in their verdi t 
guilty, their v rdict has found the fact only and not the 
law ? 
(3) Is 
it to be und rstood by this opinion that, if the jury 
come to the bar and say that they find the printing and 
publishing but that th paper is no libel, lhe jury are' to 
be taken to have found the defendant guilty generally, 
and the verdict must be enter d up ? 
~4) Whether the opinion means to say that, if the judge, after 
giving his opinion of th innocence or criminality of the 
paper, should leav the consideration of that matter together 
with the printing and publi hing, to the jury, such a dir ction 
would be cgntrary to law ? 


16 


The whol, po ition was thus stripped of its covering and 
mercil s ly laid bare. Lord Man field, however, refused to an wer. 
-There was nothing to be said. 

In the meantim matt rs remain d unalt r d, until in 1784 
the Dean of t. Asaph was pro ecuted for publi hing a seditious 
pamphlet entitl d" A Dialogue betw en a Gentleman and a Farmer." 
Thi was th c lebrated ea e of R. 11. Shipley.(1) Er·kine def ndecl, 
and used the a e a a mean of expounding as fully as he was abl 
the criti ism of the exi ting tate of the law. 

The trial was at hrew bury Assizes before Bull r, Erskine 
travelling down by coach in great pomp and tate in order to conduct 
th d f nee in p r. on. The line taken was that the pamphlet was 
inno ent ; and that it was the jury's province to d ·cide a to its 
inno ence or guilt. In hi summing up the Judgt' gave the jurythe u ual directions : that their con ern was with publication and 
innuendo only. Their verdict was: " Guilty of publi hing only " ; 
and then followed th famous scene in Court b •tween Er kin and the 
J udge as to what the words a tually meant. After a long and 

xcited discussion the jury said that th' verdict intended to say"Guilty of publishing, but \\hether it wa a libel or not th y did 
not know." 

In the following term Erskine-whom it wa aid had rect>i\'ed 
a r cord retainer-moved for a new trial in a speech whi h is still 
out tanding both for it larit\' and for th admirable clo enes of 
it rea oning. In essence his argument amounted to lhis : intent 
was an intt>gral part of editious Libel and pee h ; and the question 
as to whether the word complain >d of came '' ithin th' definition 
as laid down by the ourt wa one of fact for th ' jury. 

Lord l\fansficld, in an elaborate summing up of th ' ffcct of 
the decision from the Re\'olution nward, held to the olJ point of 
view and said: " u h a judicial pr, tice in the ptL' be point from 
the Revolution, as I think, dom1 to the pre ent day, is not to be 
shaken by argunwnt · of general th ·ory or popular declamation." 
The appli ation was rdu.ed. 

L ga.lly, and according to prect'dent, tlw ourt wa perfectlyright ; the limited scope of the jury to considL r fact and innuendo 
only, and not intent, wa. amply upport d by th cases ; th re 
was no question of straining the law to upport the Judg •'s \'iew. 
What had hap1 •n ·d wa that in the course of years the Bench had 
developed a p.1rticular doctrine a to the function of the jury in 

a 'S of this chara ter whi h had become tereot ·ped and fixed ; 
in tll' meantim ' popular opinion for a \'ari ' ty of rea on -chief!}
through the growth of Lib ra.l thought-had om' to r ject tlus 
vi ' W and to dl'mand its modification. The result was a deadlock. 

1

() 21 t. Tr. 1043. 


17 

Even had they so wished, the Judges, from the very nature of the 
position which they had created, were powerless to intervene, It 
had become a part of the very fabric of the law; the only method 
of removal was by an operation which they themselves were unable 
to perform. Legislation could alone cope with the matter. Eight 
years after the case of R. 11. Shipley this knife was used; the tangle 
of cases and precedents was cut sharply acro s, and the huge tumour 
of reactionary pedantry removed. With Fox's Libel Act there 
ended a phase which had begun at least as far back as the days of 
Elizabeth, which had extended through the times of the t.ar 
Chamber, and which had covered almost the whole of the 18th 
century. The year 1792 thus marks very clearly a turning point 
in the history of Seditiou Offences, and from now onward there 
begin what may be called the modern period of development. 

m. 
From the part Fox played in the agitation which brought it 
about, the Libel Act of 1792(1) has been known ever since by the 
title of Fox's Libel Act. It is quite short, its relevant portion 
being as follows :


. on the trial of an indictment or information for the 
making or publishing any libel .... on the plea of not guilty .... 
it shall be competent to the jury .. . . to give their verdict of 
guilty or not guilty upon the whole matters put in issue ... . 
and they shall not be directed by the Court or Judge .... to 
fmd the defendant or defendants guilty merely on the proof of 
publication of the paper charged to be a libel ... . 

" Provided : that the Court or Judge ... . shall according 
to his or their discretion give their or his opinion and directions 
to the jury on the matter in issue .... in like manner as in other 
criminal cases." 

The effect of this was to establish the principle ontended for 
by Erskine. In regard to the proviso, the general opinion of the 
judges immediately after the passing of the Act was that a judge 
at a trial of a Seditious Offence was bound to direct the jury. Now, 
however, the view prevails that his position is the same as in any 
other criminal case, i.e., if he thinks that the accused should be 
acquitted, it is his duty to say so. 

It should be noticed that the Act is silent as to proving the 
truth of a Libel. Its real significance, though, lies in this : before 
its passing, the Law as regards trials for Seditious Offences had been 
fixed and determined by the judges in such a way as to leave grave 
doubts in many minds as to whether, as matters stood, real justice 
could be administered in trials of tl1is nature. In favour of the 

( 1) 32 Geo. Ill., C. 6o. 

rS 

modification of the ex1stmg law there aro e a popular clamour. 
Erskine, in the cases which he fought, and particularly in R. v. 
Shipley, had ought to clothe this popular feeling with legal habiliments. 
In the end the weight of public opinion prevailed. The 
Libel Act of 1792 is, therefore, nothing less than a recognition of 
the straining and distortion which had taken place in the existinglaw, and is the means whereby that law was brought back into a 
nearer line with the feeling and wishes of the country as a whole. 

For what was the proper definition of a Seditious Libel at the 
end of the r8th century, before the passing of this Act ? In plainlanguage it amounted to this: Written censure upon public men for 
their conduct as such, or upon the laws, or upon the institutions 
of the country. This is the substance of Coke's "De Libellis 
Farnosis " : the definition acted upon by the Star Chamber and 
later by the Courts of King's Bench. It had never been altered by 
any Act. In practice this meant that any political discussion 
whatever, of whatever kind, could be visited, if it was so desired, 
with a prosecution: the meshes of the net were marvellou ly 
small. But in spite of this the ultimate check of the jury r mained. 
So long as juries were independent and fearless no Executive could 
obtain convictions merely upon trivial and unnecessary charges. 
So much to the good. Except that the judges had interposed.
Building up their proposition by precedent upon precedent theyhad succeeded in withdrawing from the jury's consideration the 
very substance of the case. Under cover of the general proposition, 
"fact for the jury; law for the Court," they had arrogated to themselves 
the sole right of deciding (once publication and innuendo 
had been proved) as to the guilt or otherwise of the accused-and 
this on a matter which more than any other demanded the consideration 
of a panel of ordinary citizens and not that of a cloistered 
and possibly politically minded, recluse. 

Erskine had challenged this doctrine by saying that intent 
was essential to Seditious Offences, and that on such a questionjuries were clearly entitled to find-in effect, arguir;~g that the 
whole question of guilt or not was for the jury. This was a perfectly 
sound argument. It nev r was the law of England that a 
man committed the offence of publishing a Seditious Libel by accidentally 
dropping it out of his pocket. Publication must have 
been intentional for there to have been a crime committed. 

The result of the Libel Act was to embody in the definition 
of Seditious Offences some kind of bad intention on the part of 
the offender. This is not said in so many words, but the whole 
matter is merely left to the jury' consideration, and this is its 
actual effect, and in such ,,w e the law has been administered ever 
since. Thus, after the pas ing of the Act, a general definition of a 

editious Offence is : " blame of public men, laws or institutions, 


19 

published with an illegal intention on the part of the publisher." How 
great an adva,nce this represents on the previous position must be 
obvious even to a layman. 

From now onwards, as the cases clearly show, juries become 
the deciding factor in trials of this nature; public opinion, for this 
very reason, is more nearly reflected in the acquittals and the convictions 
: and brilliant advocates like Erskine find the scope of th ir 
defences suddenly widened. The effect of this fundamental change 
can be definitely traced from this time forward until the presentday. This short, insignificant looking Act in reality revolutionised 
the existing situation ; for it brought back into these cases the full 
power of the jury and of public opinion, and that in itself was no 
small thing. 

IV. 
The four years after 1792 were particularly stormy ones in the 
hi~tory of nearly every European nation, and not least in England. 
As was only to be expected, trials for political libels and seditious 
words became frequent ; for the Executive were definitely taking 
a strong line. For 1792 and 1793 no less than twelve cases of this 
nature are reported in the State Trials, and these, it must be remembered, 
were merely typical ones. The number reported in 
these two years is only one less than the total number reported for 
the whole period from 1704-1789. One thing clearly emerges: 

the Libel Act did not have the effect of making convictions less 
frequent ; on the contrary they tended to increase after its passage. 
As an example of the feeling of the time, Duffin and Lloyd,(1) two 
prisoners in the King's Bench prison, were convicted of" Seditiouslydevising, contriving, and intending, to excite and stir up divers 
prisoners to escape, by publishing an infamous, wicked and Seditious 
Libel " in the shape of a placard bearing the words : " TI1is House 
(meaning the prison) to let. Peaceable possession will be given by 
present tenants on or before 1st January, 1793, being the commencement 
of the first year of liberty in Great Britain." 

The following day (18th December, 1792). Tom Paine(2) <vas 
prosecuted for publishing the "Rights of Man." He was found 
guilty by the jury without hearing the Attorney-General's reply 
to the speech for the defence. At the trial Erskine delivered his 
first important speech on this subject since the passing of the Act. 
His argument in substance was that:


(1) 
The Libel Act defines libel as publishing certain kinds of 
written blame with a bad intention, i.e., from a bad motive. 
(2) 
A man who publishes what he really believes to be true in 
order to benefit mankind cannot be acting from a bad motive. 
(3) 
Therefore no opinions when published are criminal unless 
the publisher wishes to injure mankind. 
~--------------------------


(1) 22 St. Tr. 318. 
(') 22 St. Tr. 357-471. 

20 

If this were applied in practice it would result in no prosecutions 
for Seditious Libel being commenced, or, if commenced succeeding,
unless the matter complained of obvj.ously tended to incite 
people to commit some crime, or unless it definitely attacked an 
individual's tharacter. 

Indeed, this is the very direction in which the public mind is 
to-day tending to move ; but the time taken to bring such a change 
about has been appallingly slow. For many years after the passing 
of the Libel Act juries absolutely refused to think along these 
lines at all ; and even now, nearly a hundred and fifty years later, 
the proposition is by no means universally accepted. The right 
to prosecute politically is clung to by a nervous dominant class as 
firmly in the days of George V. as it was in those of George Ill. 
Now, as then, they will probably fight bitterly to retain it. 

Acquittals at this time were rare. The most famous, however, 
were those of Lambert, Perry, and Gray(1) , the proprietors of the 
Morning Chronicle. They had published a tract calling attention 
to the heaviness of taxation and the frequency of war, talking of 
" Cruel and impolitic Wars," and condemning the existing criminal 
code. 

Erskine repeated the same arguments he had used on former 
occasions. The proposition of the Crown was that taking into 
account the character of the times, the defendant's object must, 
necessarily, have been a bad one. The judge, Lord Kenyan, summed 
up heavily against the defendants; but the jury, after considering 
their verdict from two in the afternoon until five o'clock the next 
morning, acquitted. 

As instancing a judge's typical summing up one can consider 
Cobbett's trial in r8o4.(2) Cobbett had been prosecuted for a 
seditious libel on account of his criticism of the Irish Administration. 
He was found guilty but was never sentenced. Lord Ellenborough 
is reported as saying : " On the three following points you have to 
exercise your judgment : first the preliminary allegations and 
innuendos; next, the fact of publication ; and thirdly, the quality 
and sense of the thing published. This is the matter at issue." 

" Upon the subject of libel, it may be as well for me to observe 
.... that, by the law of England, there is no impunity to any 
person publishing anything that is . . .. prejudicial to the general 
interests of the State ... . . It is no new doctrine that if a publication 
be calculated to alienate the affections of the people by bringing 
the government into disesteem .... the person so conducting 
himself is exposed to the infliction of the law. It is a crime." 

(') 22 St. Tr. 1008. 
(') 29 St. Tr. I. 


2I 

The severity of the Executive's persecution was shown in the 
case of Hart and White.(1) Th1s was an information in respect of 
a libel published in the Independent Whi~ commenting on the 
action of the Court and Jury in acquitting Bennett and Chapman, 
two notorious characters, who had been tried for the murder of an 
able seaman and a cabin boy in circumstances as it was alleged of 
the most fiendish cruelty. The Crown alleged that the article complained 
of criticised and attacked the jury system and was therefore 
seditious. A jury of merchants complacently returned a verdict of 
guilty and a savage sentence of eighteen months' imprisonment was 
thereupon inflicted. 

In r8rg,(2) Seditious Libel for the first time received statutory 
-definition. The Act in question enacted that upon a conviction 
for a blasphemous or seditious libel, the Courts should have power 
to order all copies of the libel in the possession of the person convicted 
to be seized, and for this purpose defined seditious libel as being :


" Any seditious 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 as by law established, or either House of Parliament, 
or to excite His Majesty's subjects to attempt the alteration 
of any matter in Church or State as by law established otherwise 
than by lawful means." 

Practically this is the same thing as saying that a seditious 
libel is any libel which has any of these tendencies. Thi" definition, 
it will be seen, forms the major portion of the definition as drafted 
by Mr. Justice Stephen, which is at present accepted by the Courts 
as representing the existing law as regards the offences here being 
·considered. 

Next year occurred the important trial of R. v. Burdett.el 
Sir Francis Burdett was fined £z,ooo and imprisoned for three 
months for a letter written on the subject of the dispersion of a 
meeting at St. Peter's Field, Manchester, by the Yeomanry. 

On a subsequent motion for a new trial a most important 
discussion took place on the Libel Act of 1792, constituting the 
fullest possible enquiry into the nature and offence of libel. The 
most important ground for a new trial was that the judge-Besthad 
exceeded his duty, as defined by the Libel Act, in charging the 
jury. On this point his own statement was to this effect :


" I told the jury that the question whether it was published 
with the intention alleged in the information was peculiarlyfor their consideration ; but I added that this intention was to 

{ 1) (I8og) 30 St. Tr. n 68. 

(2) 6o Geo. Ill. and I Geo. IV., C. 8. 
(') {I82o) I St. Tr. (N.S.) I. 

There now ensues a gap during which no cases of any outstanding 
importance appeared until r886. In that year John Burns(!)
and three other defendants were indicted for uttering seditious 
words concerning Her Majesty's Government with intent to cause 
a riot, and to cause ill-will between different classes of Her Majesty's 
subjects. The occasion was an unemployed demonstration of 
20,000 people held in Trafalgar Square on the 8th of February, r886, 
which was followed by a certain amount of rioting among the Clubs 
in the West End. 

Mr. Justice Cave, who tried the case, delivered an elaborate 
summing up. After mentioning that Mr. Justice Stephen's defmition 
of Seditious Offences undoubtedly represented the unanimous 
view of the judges, he said that in the present case two seditious 
intentions were alleged by the Crown, viz. :


(r) An 
incitement to alter some matter in Church or State 
otherwise than by lawful means. 
(2) To promote feelings of hostility between different classes. 
Dealing with the second of these he said :" 
This is necessarily somewhat vague . . . . I should prefer 
to say that the intention to promote feelings of ill-will and hostility 
between different classes .... may be a Seditious intention 
according to circumstances, and of those circumstances the jury 
are the judges .. .. taking into consideration the whole of the 
circumstances of the case." 

On the ·other point he remarked :


" If from any sinister motive . . . they desired to bring the 
people into conflict with the authorities, or to incite the malicious 
and disorderly to damage the property of unoffending citizens 
you ought necessarily to find them guilty. On the other hand, if 
you come to the conclusion that they were actuated by an honest 
desire to alleviate the misery of the unemployed . . . . you should 
not be swift to mark any hasty or ill-considered expression which 
they might utter in the excitement of the moment." 

In conclusion he said :" 
I have already told you that you must take a broad and even 
a generou~ view of the whole of the case presented to you. · You 
must not attach too much importance to isolated phrases, but you 
must look at the general gist of the matter." 
The jury, after deliberating for some time, brought in a verdict 
of Not Guilty. 

It is, perhaps, not uninteresting to note that in rgo6 the chief 
defendant became President of the Local Government Board and a 
Privy Councillor. 

( 1) r6 Cox C.C. 355· 

25 

In 1909 one Aldred(1) was indicted for publishing a seditious 
libel concerning India and the Indian administration. The Crown 
was only concerned with the proof of one point, viz. : Whether the 
defendant had used language implying that it was lawful and 
commendable to employ physical force in any manner against the 
King's Government. 

On this Lord Coleridge, the judge, S8;id :"
Nothing is clearer than the law on this head, namely, that 
whoever by language, either written or spoken, incites or encourages 
others to use physical force or violence in some public matter connected 
with the State, is guilty of publishing a seditious libel. . ... 
The test is not either the truth of the language or the innocence 
of the motive with which he published it, but the test is this : was 
the language used calculated, or was it not, to promote public 
disorder or physical force or violence in a matter of State ? " 
The defendant had contended that he was entitled to freedom 
of abstract academic opinion-in other words, what is commonly 

called free speech. 
Referring to this Lord Coleridge said :"
A man may lawfully express his opinion on any public 

matter. .. . . Matters of State, matters of policy . . .. are opento him ..... For instance, if he thinks that either a despotism, 
or an oligarchy, or a republic, or even no Government at all is the 
best way of conducting human affairs he is at perfect liberty to say 
so. He may assail politicians, he may attack Governments... ·.. 
He may seek to · show that rebellions, insurrections, outrages,
assassinations, and such like, are the natural, the deplorable, the 
inevitable outcome of the policy which he is combating..... But 
on the other hand, if he made use of language calculated to advocate 
or to incite others to public disorders . . .. of any physical force 
or violence .... then . ... whatever his intentions, there 
would be evidence on which .... a jury would decide that he was 
guilty of seditious publication." 

Aldred was found guilty and sentenced to 12 months' imprisonment. 


For sixteen years after this no case of this character came 
before the Courts, until, on the 18th November, 1925, the Executive 
of the Communist Party of Great Britain were prosecuted at the 
Old Bailey on a charge of :-· 

(1) Conspiracy to publish seditious words and libels. 
(z) Incitement to breaches of the Mutiny Act, 1797. 
(3) 
Endeavouring to seduce persons serving in the Forces of 
the Crown. 
(1\ 
22 Cox C. C. 1. 


26 

Sir Henry Slesser, who had been Solicitor-General in the Labour 
Government of 1924-25, defended, and the Attorney-General of the 
day conducted the case for the prosecution in person. 

Legally, the trial was of no great interest except for the distinction 
drawn by the defence between a charge of Seditious Conspiracy 
(the way in which the case had been opened to the jury by 
Sir Douglas Hogg), and that of conspiring to publish Seditious Libels. 
In the end the interpretation put forward by the defence was 
accepted by the Judge and in that form left to the jury. The distinction 
thus insisted upon was no idle one; for a charge of Seditious 
Conspiracy, if it had really appeared in the indictment, would have 
permitted the admission of a mass of evidence directed to showing 
that the Communist Party of Great Britain was an illegal society, 
and that it was part of a world-wide organisation with illegal aims ; 
whereas the charge of conspiring to publish Seditious Libels reduced 
the matters under consideration to the two comparatively simple 
and narrow questions :


(1) Were the alleged publications seditious ? 
(2) Were they published by the defendants acting in concert J 
Apart from this no new legal issue was raised, the defence 
confining itself, under this head, to showing that no direct incitement 
to disorder and violence had been made. 
After a long but somewhat unemotional hearing--considering 
the deep interest which the trial had aroused in the country generally-
the defendants were found guilty and were sentenced by 
Mr. Justice Swift to various terms of imprisonment varying from 
six months to a year. 
There the long line of cases stretching back to the Tudors, or 
possibly further still, comes to an end ; twelve more political prisoners 
have been placed in gaol ; the line of Seditious Succession-
if one may coin the phrase-has been kept intact . 

V. 
There remain Seditious Conspiracies. Commonly, this chargeis made in connection with Seditious Language, a conspiracy being 
first proved to exist and then evidence of violent language being 
given as proof of an overt act. 
This application of the charge of Seditious Conspiracy is 
comparatively modern, the first instance being the trial of Redhead 
Yorke(1) in 1795. He was charged with two other defendants that 
they " unlawfully, maliciously and seditiously, did combine, conspire 
and confederate . . . . to traduce, vilify and defame, the 
Comm~?s House of Parliament, and the Government by this realm 

(') 25 St. Tr. 1003. 


27 


The Judge, in his charge to the jury, said:-" If he (Redhead 
Yorke) has in your opinion been guilty of addressing a public 
meeting . . . . when your-own observation must furnish youwith what the state of the country was . . . . and that language 
has a tendency .... to vilify, traduce and defame the House of 
Commons: if you think .... he and Gales conspired together, 
you will find him guilty." 

After considering for twenty minutes the jury found a verdict 
of guilty, and Yorke was accordingly fined £zoo, ordered to find 
security for his good behaviour for seven years, and imprisoned 
for two years. Some years afterwards the Masters of the Bench of 
of the Honourable Society of the Inner Temple called him to the Bar. 

Many well-known trials followed in after years. In r8zo(1)
Hunt and others were tried for a Seditious Conspiracy of which the 
overt Act was the holding of a meeting dispersed at Manchester 
in r8rg. In 1839 Vincent(2} and others were tried for a Seditious 
Conspiracy in connection with the Chartist agitation. The most 
memorable of all these cases, however, was the O'Connell(l) case 
in 1844. Here O'Connell and eight other defendants were tried 
for a Seditious Con piracy of which the overt acts were meetings, 
and speeches made at the meetings, agitating for the repeal of the 
Union. 

Commenting on these trials, Mr. Justice Stephen remarks(4} :" 
These prosecutions and others which might be referred to all proceed 
on principles very similar to those on which Seditious Libels 
are tried. The charge ~ommonly is that the defendants conspired 
together to effect some purpose inconsistent with the peace and 
good government of the country, and that they manifested that 
intention by speeches made, and meetings held, in concert. The 
proof commonly is that some sort of organisation was formed in 
which the defendants took part, and that things were written and 
said in consequence which were calculated to effect the objectsin question." 

O'Connell and his friends were tried on eleven Counts. They 
were found guilty. Subsequently the House of Lords held nine of 
the counts to be good and two bad on account of vagueness. The 
nine good counts variously charged the defendants with conspiracy 
to raise discontent and disaffection ; to stir up jealousy and ill-
will between different classes ; to diminish the confidence of the 
Crown's Irish subjects in the general administration of law ; and 
to bring about changes in the law by meetings held to hear Seditious 
speeches. 

( 1) R. v. Hunt, 1st Tr. N.S. I. 
(') 9 C. and P. 91. 
(3) S. St. Tr. (N.S.) 6. 
('1 History of Criminal Law, Vol. Il., p. 37'>· 

The importance of the House of Lords decision in holding 
these counts to be good lies in the wideness which has in consequence 
been given to the definition of Seditious Conspiracy. Apparently 
any attempt by violent language, either spoken or written, or bv a 
show of force calculated to produce fear, to effect any public obfect 
of an evil character, can be dealt with in this way-providing the 
existence of a conspiracy be first proved. And inasmuch as the 
question of what objects are, and what are not, regarded as evil 
has never been definitely laid down, there still remains tremendous 
scope along this line for an attack upon any organisation of a 
political nature whose views are not those of the government of the 
day. How important a charge of Seditious Conspiracy of this 
nature might be, was shown in the recent Communist trial by the 
great efforts made by the defence to show that, possibly through a 
flaw in the drafting of the indictment, but certainly in fact, no such 
charge was upon the record in that particular case. The objection 
was there upheld ; but there is no guarantee that on future occasions 
this weapon may not be used to the full. 

VI. 
Such then, broadly speaking, is the position to-day. The 
crimes cla sed as Seditious Offences require as an essential ingredient 
of their proof the establishment by the prosecution of a 
certain element of intent ; and the existence or otherwise of this 
intent is now, thanks to Fox's Act, a matter wholly for the determination 
of the jury. As to what is and what is not Seditious 
Intent the Courts look to Mr. Justice Stephen's definition as formulated 
during the latter half of the last century, which he in his turn 
had slightly expanded from the definition contained in 6o Geo. Ill. 
and I Geo. IV. c. 8, and which was itself evolved from the practice 
of the Courts of King's Bench and Star Chamber working in the first 
place on the more remote and least clearly defined fringes of Libel 
and High Treason. But that is not all ; for just as during the time 
from Coke's definition " de libellis famosis " down to the Stephen 
definition of approximately 70 years ago, the cases actually coming 
before the Courts moulded and transformed the current conception 
of Seditious Offences in such a way that it is possible, looking through 
them, to note a gradual but nevertheless definite modification of 
the harshness of the early view even after allowing for periods of 
abnormal strain and crisis like that following the outbreak of the 
French Revolution; so, since Mr. Justice Stephen's codification, similar 
changes have been at work and the same process is to be observed 
still continuing this development as a definitely dynamic thing. 
From this point of view the most obvious respect is in cm1nection 
with that portion of his definition which declares it to be a 
seditious intent " to promote feelings of ill-will and hostility between 
different classes of His Majesty's subjects." On the face of it this 


29 

is s;learly fantast~cally wide if considered in the light of its present-
day implications. Practically any public utterance of every 
prominent Labour leader could, if it were so desired, be broughtwithin its scope. Apart from politics it would cover a huge area 
in connection with the present-day industrial relations between 
employer and employees. A Tower Hill orator urging workers to 
boycott capitalists guilty of sweating labour would, presumably 
under the definition, be uttering Seditious Words ; and so also 
probably, would a member of the F.B.I. were he to launch an 
attack on conditions in a so-called sheltered industry with the 
object of awaking employers to the wages they were paying. 

Thi was recognised as long ago as R. v. Burns, when Mr. Justice 
Cave, commenting on this particular limb of the definition, said:


" I should rather prefer to say that the intention to promote 
feelings of ill-will and hostility between different classes of His 
Majesty's subjects may be a seditious intention according to circumstances, 
and of those circumstances the jury are the judges ; 
and I put this question to the Attorney-General in the course of the 
case : ' Suppose a man were to write a letter to the papers attacking 
bakers and butchers generally with reference to the high prices of 
bread or meat, and imputing to them that they were in a conspiracy 
to keep up high prices-would that be a seditious libel, being written 
and not spoken ? To which the Attorney-General gave me the only 
answer which it was clearly possible to give under the circumstances: 
'That must depend upon the circumstances.' I, sitting 
here as a judge, cannot go nearer than that." 

Since that case the question has never been raised in any of 
the other trials which have taken place, and it would seem that 
this whole portion of the definition is well recognised to-day as 
being obsolete. In reality it is redundant, as the only possible 
cases which can be conceived to which it applies would be more than 
covered by the remaining body of the definition. It would seem, 
therefore, highly desirable that this relic of 18th-century thought-for it is nothing more or less than a statement of the frame of 
mind which inaugurated prosecutions like that of Tom Paine-
should be effectively obliterated, and a contingent danger to rights 
which must be considered of primary importance in any real democracy 
removed. 

In addition, a change has taken place in what may be called 
the more general aspect of these changes. It is this to which Mr 
Justice Stephen is alluding when he writes (1) : "In one word, 
nothing short of direct incitement to disorder and violence is a 
seditious libel." Burns' case and Aldred's case each confirm this. 
The judges in both these cases, as has been pointed out, sought to 
implant in the minds of the jury a connection between a direct 

( 1) Hi.<lory of C.-iminal Law, Vol. II., p. 375· 

30 

incitement to violence and a verdict of guilty. Pausing there for 
a moment, it is possible to recognise what a great step forward has 
been made by the acceptance of this doctrine, which is nothing 
more or less than that contended for by Erskine in 1792. According 
to this view, words are only capable of bearing a seditious intent 
if the reasonable direct result of their publication is, or would be, 
an outbreak of violence ; and thus the whole scope of charges for 
Seditious Offences is in one stroke narrowed to limits which-
granted that juries are intelligent and will act sanely--cannot 
but be considered as reasonable. The free expression of mere 
academic opinions-as was unequivocally stated by Lord Coleridgein Aldred's case-is, therefore, allowed ; and more than that, it 
must be remembered that it is for the Crown to show, if a prosecution 
is inaugurated in any particular case, that the words complained 
of are likely to promote, or have promoted, violence. 

But although this principle is clearly di cernable in the more 
recent cases, it does not follow as a matter of course that any judgetrying a case which might arise in the future wou\d arrive of necessity 
at such a view of the law. There are reactionary-minded 
judges just as there are liberal-minded ones. As the law at present 
stands it is quite conceivable that the interpretation just referred to 
might not be put before the jury at all. In which event, it mightbe argued, the Court of Appeal could intervene. But this is really 
an insufficient answer : for in the meantime an incalculable amount 
of harm might have been done in the minds of the nation at large. 

What is needed, it is suggested, is a short Act providing that 
in every trial of this nature the jury shall be asked the direct question 
as to whether the words complained of are reasonably likely 
in their opinion to promote actual violence ; and that their verdict 
shall depend upon their answer to this question. At the same time 
provision might be made for the giving of statutory effect to the 
definition of what is seditious intent, from which the obsolete 
clause already referred to might be omitted. 

In this way, by the removal of the last vestige of the shadow 
of Treason which has for so long overshadowed them, Seditious 
Offences would be placed upon a plain and perfectly straightforward 
footing. The word sedition would thenceforward lose its 
sinister associations in the ordinary mind ; and political prosecutions, 
it is to be hoped, would definitely become things of the past.
Much has been done already in the course of time to bring such a 
state of affairs about. To-day it only remains to take the final 
step. The arguments in favour of following such a course as has 
been here indicated are overwhelming and unanswerable ; but 
it may nevertheless be interesting to the cynically-minded to compute 
what time will elap e, given the present political situation, 
before this change, necessary and desirable as it is, is actually 
carried out. 


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