Romanticism and the Law
The Discourse of Treason, Sedition, and Blasphemy in British Political Trials, 1794-1820
Michael Scrivener, Wayne State University
Percy Shelley, upon first hearing about the Peterloo Massacre, wrote back to Charles Ollier using the words Shelley had made Beatrice Cenci say after she had been raped by her father: "Something must be done . . . What yet I know not" (Cenci III.i.87-88; Letters of Shelley 2:167). 1 For Beatrice the "something" turns out to be patricide, which in the terms established by the play is seditious, treasonous, and blasphemous. I point to this well known instance of self-quotation to illustrate the main idea of my paper: it is the rule, rather than the exception, perhaps especially during the English Romantic literary period, that transgressive discourse, whether of treason, sedition, or blasphemy, has unstable boundaries so that the very same words appear in different contexts and registers for different effects. Beatrice's statement is conditioned by dramatic conventions that distance its immediate reference to contemporary politics; the action of the play, The Cenci, takes place in 15th-century Italy, not 19th-century England. Nevertheless, the aesthetic object, The Cenci, could not be performed on the London stage because of the play's father-daughter incest. That is to say, the aesthetic object was also a symbolic speech-act that transgressed the contemporary norms current on the London stage. Shelley had tried to conform to the stage decorum by omitting entirely the word "incest" from the play, but the play was too transgressive for superficial prophylaxis. On the other hand, The Cenci as a published text to be read rather than performed in a public space was both legally permissible and fairly well received, as it was Shelley's only work going into a second edition in his lifetime. The difference in presentation is decisive, as a London stage play is socially more accessible, popular and therefore powerful than the private experience of reading a play. The same holds true today, as censorship exists most intensively in the most popular media, that is television, film and radio, and almost not at all in the print media (except for school textbooks, of course).
In the fall of 1819 Shelley wrote of possibly having to return to England for a civil war. To Leigh Hunt he writes: "I suppose we shall soon have to fight in England" (Letters of PBS 2: 167). It is conceivable that if Shelley, the Hunts and their friends had in fact collected arms in preparation for a conflict, and if the government had intervened and collected evidence, Shelley's letters to Ollier and Hunt could have been used as evidence in a treason or sedition trial; Shelley's play, The Cenci, could have been used as well. As John Barrell has pointed out, by the late eighteenth century the crime of treason as defined in 25 Edward III had been interpreted as primarily a mental rather than a physical act (Barrell 122-23, 139) 2 In Chief Justice Eyre's famous formulation of constructive treason, the "overt acts" tied to imagining or compassing the king's death could be even more remote than those established earlier by justices Hale and Foster. Hale and Foster ruled that nonviolent deeds that only assisted the actual regicide attempt were treasonous. Eyre endorses the expanded notion of remote overt acts to include actions that would initiate a process during which and because of which the king could be killed. As Thomas Pfau has commented, Eyre's "extraordinary interpretive latitude" turns mere facts into a concealing "veil" that has to be interpreted (Pfau in Behrendt 38-39). In Eyre's own words: "The entering into Measures which, in the Nature of Things, or in the common Experience of Mankind, do obviously tend to bring the Life of the King into Danger, is also compassing and imagining the Death of the King" (Marken & Pollin 134). Eyre also ruled that nonviolent associations and assemblies advocating parliamentary reform could be treasonous. Only Parliament and the King have the authority to alter the Constitution. Any assembly, association or "convention" that attempts to usurp this authority is guilty of treason. Also, Eyre views the very nature of the public sphere, its debates and political associations, however moderate the initial discourse, as ultimately subversive of established authority and likely to lead to social and political disorder.
Just as the jury in 1780 had failed to convict Lord Gordon of constructive treason, so the juries rejected Eyre's view of constructive treason in the treason trials of 1794. Thereafter the government prosecuted for treason only those cases where there was some actual evidence of violent acts discussed or planned, as with Colonel Despard in 1802 and the Cato Street Conspiracy in 1820. Eyre's interpretation is important nevertheless because it marks a definitive transition in how political subversion is socially constructed. The object to be protected by law is no longer the person of the king but the more amorphous entity of the "Constitution." Even the Cato Street conspirators never spoke of harming the king; their target was the government ministers. According to legal scholar Alan Wharam, if Pitt's government had not aimed so high in 1794 and had settled for a sedition prosecution, as had the Scottish authorities in prosecuting Palmer, Skirving, Muir, Margarot, and Gerald, then Hardy, Tooke, Thelwall and company would surely have been convicted (Wharam, Treason Trials). Nevertheless, even though the reform movement had won a momentary victory with the 1794 acquittals for treason, the government's repressive campaign, which had begun in earnest in 1792, found the tools it needed to squash the reform movement in 1795 with the Pitt-Grenville Gagging Acts. For combating the new democratic insurgence, which was the real and new threat, a new discourse had to be developed that would legitimate political repression. The new discourse retained some of the old associated meanings of regicidal treason, sedition, and blasphemy, but also softened the distinctive differences among them and established new criteria.
Sedition, a common law offense, is called by one legal scholar "perhaps the very vaguest of all offences known to the Criminal Law" (Jencks 116). The traditional definition of sedition rested on the nature of the attitude toward the sovereign. If criticism of the sovereign were not couched in sufficiently deferential language that recognized the sovereign's authority, then such criticism was deemed seditious (Holdsworth 8:338). According to Justice Holt in a ruling of 1704, criticism of the government was seditious libel, period (Holdsworth 6: 266). For Holt the fact of criticism itself implied an attitude that was not sufficiently deferential. Punishment for seditious libel also varied greatly in severity, from a few months imprisonment, probationary security, and fines, to transportation and banishment from the realm--the lattermost punishment being an innovation of the Six Acts of 1820. For the period from the French Revolution to the early 1820s seditious libel prosecutions were extraordinarily numerous. There were more sedition trials in 1792 and 1793 than there had been in the previous eighty-seven years (Jackson 35).
By turning to an important essay on the seditious libel law by Philip Hamburger, one better understands the legal context. 3 Hamburger shows that the libel law, after pre-publication censorship was abandoned in 1696, had a paradoxical effect of promoting "the art of irony and satire" (738). Moreover, the courts did not do the exact bidding of the government in their administration of the libel law. Legal procedures were ordinarily followed, so much so that convictions were not always guaranteed. The hermeneutical rule by which one was to interpret texts was formulated by Justice Holt in 1729: "the understanding given to the writing by all the world" and "such as the generality of readers must take it in, according to the obvious and natural sense of it" (739). Arbitrary interpretation was not permitted. Especially after 1792, when juries could judge whether something was seditious, the focus at sedition trials became interpreting "innuendo," that is, the shades of meaning. Satirists were skillful enough to devise ironic texts that frustrated the best efforts of the prosecuting attorneys. The government finally had to rely on the stamp tax to supplement the libel law in its efforts to control the democratic press (751).
The transition to an anti-democratic discourse of subversion is most evident in the changes in the legal status of blasphemy. In the medieval period blasphemy was a rarely prosecuted crime defined by Aquinas as a "species of unbelief" that was "worse than murder" because it was against the divine, not the human (Levy 112-13). Perhaps the first English blasphemer to be convicted and burned at the stake was an Oxford deacon who converted to Judaism to marry a Jewish woman in 1222. The preferred charge for religious dissent until the Elizabethan period was not blasphemy but heresy. When the most severe punishment that the ecclesiastical courts could mete out was excommunication--a consequence of the English Reformation--the secular courts handled religious dissent by means of blasphemous libel. The Justice Hale ruling of 1675 firmly established blasphemy as a violation of the social order. The "Christian religion," according to Hale, was "part of the law itself" especially because "taking away religion" makes "oaths" unreliable (Levy 312). The 1698 Blasphemy Law defined the crime as speech that denied the Trinity or denied Christianity or denied the "divine authority of the Bible" (Levy 329). In practice, however, Unitarians and Deists were the targets of prosecution, not Catholics or Jews (Levy 320). From the eighteenth century and into the nineteenth, seditious libel was used if blasphemy would have been more difficult; the two crimes were almost interchangeable as political libels ( Levy 333; also Wickwar 315). Judicial rulings on political libel in the 19th c. emphasized the style of the libelous speech and its tendency to "wound the feelings" of loyal Christians. 4 In short, political discourse that observed the protocols implying deference to established authority was permissible.
The shift in the discourse of subversion was not simply a matter of legal rulings that were sealed off from the other realms of cultural activity. Rather, the shift occurred seemingly everywhere in the culture, as if no one in particular had authored the change. Nor does it seem appropriate to identify the various judges and their rulings as the factors effecting the causation of these changes. Rather, the judges tended to be the voices of a consensus established much earlier.
To illustrate the ways in which the discourse of subversion operated in the culture I want to look at William Godwin's ambivalent response to the threat of treason in 1794-95, some of John Thelwall's reactions to the treason charges against him, and, finally, Robert Wedderburn's blasphemy trial of 1820.
William Godwin's Ambivalence
Thelwall and Intemperate Language
The prosecution went to great lengths to find external signs of Thelwall's inner thoughts. These external signs would then in turn assist the jury in interpreting ambiguous words and actions. Two external signs of Thelwall's political convictions were cited earlier in Hardy's trial, the seditious songs that Thelwall wrote for the LCS and that were widely distributed and sung, and a seditious comment he made at a tavern after an LCS meeting. According to the spy report, "Mr. Thelwall took a pot of porter and blowing off the head, said--'This is the Way I would serve Kings.'" LCS members challenged this report by recalling the word "Tyrants" rather than "Kings" (Thale 140 n.113). Thelwall handles this embarrassing evidence in several different ways, from challenging the veracity of the witnesses to blaming his fiery temperament.
In the Natural and Constitutional Right of Britons (1795), a published version of three lectures he delivered shortly after his acquittal, and of a speech he wanted to deliver in court but was dissuaded from doing so by his lawyer, he refers four times to "ridiculous toasts" and over ten different times to "intemperate" expressions in general. 6 Thelwall, however, actually used regicidal imagery in texts like John Gilpin's Ghost and the Chaunticlere allegory, for which the publisher, Daniel Isaac Eaton, was prosecuted and acquitted. That he made the "ridiculous toast" hardly seems in doubt.
Another episode that came out in the trial and that was especially difficult to explain was an "intemperate" letter Thelwall had written but had not sent. This letter declares his republican sympathies, supports the Jacobin "Mountain" in Paris, and criticizes America for having "too much veneration for property--too much religion--too much law." He had given vent to his anger because, as he explained, he had just barely escaped yet again from being indicted by the grand jury. At the trial itself and in his print defense there is the apology that "Thelwall was subject to great irritability of temper, a quality which he, in after life, in a considerable degree corrected, and in these moments, for they seldom exceeded a few seconds, of excitement, would say and do things, of which, after a short reflection, he would repent" (Mrs. Thelwall, Life 282). It is a rich irony that he inserted the inflammatory letter into Samuel Johnson's Dictionary, an apt symbol of cultural sobriety.
At Thelwall's trial the prosecuting attorneys dramatically highlight the letter because it was more damaging than the seditious toast. Whereas one could ascribe a toast to the effects of enthusiasm enhanced by alcohol, a private letter suggests sincere expression of one's thoughts. He provides a politically moderate interpretation for his words on America (Claeys 55), but this very example reinforces the cogency of what Wharam and Barrell say about the treason trials, that the court procedures were applied to discover the meaning of mental operations. Thelwall protests against having "to answer at the bar of the Old Bailey for every intemperate expression" he may utter, or every "crude imagination" he may put on paper (Claeys 55), but oral and written texts are signs of subjective intention, and possibly the discourse of treason.
In the speech he had planned to deliver to the jury, there is an "intemperate" rhetorical pattern that mirrors both the prosecution's charges of subversion and the defense's psychological explanation. The speech is punctuated with moments of intemperance, usually apostrophes, designed to bring readers to a high pitch of emotion only to bring them back down to some kind of rational equilibrium. Such is the pattern and structure of the essay. There are eight major apostrophes distributed throughout the speech, only one of which will I examine briefly. Near the end of the speech he accumulates numerous examples of the government's exercise of arbitrary power from suspension of Habeas Corpus to jury-packing, concluding thus: "was it not time for Britons to rouse from their lethargy, and enter their serious protest against innovations so tyrannical, and encroachments so decisive?" (Claeys 44-45). Precisely at the point he appeals to the audience to take action he heightens the rhetoric even more with the following apostrophe:
"O miserable country, indeed, if thy legislature could meditate so many fatal stabs! and thy sons can be arraigned for treason for crying to the parricides to forbear!
O miserable country! whose rulers not only demand obedience to their laws, but implicit reverence also to the crude conceptions of their brains--their hints--their threats--their contemplations--the shapeless embrios of their legislative imaginations!" (Claeys 45)
In line with the whole speech's rhetorical strategy of refuting the charge of treason by redefinition, Thelwall makes the Jacobins themselves the loyal sons victimized by the parricidal traitors of government. Thelwall inverts the treason charges in a chiasmus: from "The State charges Thelwall with treason" to "Thelwall charges the State with treason." Government is kept separate from the nation, so that he can demonize his persecutors without seeming to attack the nation's people. The monarch is sublimed entirely into, but is not identical with, the concept of "country." Inverting the charge of conspiracy, Thelwall makes the government a source of "intemperance." The apostrophe convicts the government of treason.
Having demonized his accusers, having used an intemperate rhetoric that protests against the government's intemperance, Thelwall modulates the discourse to a more moderate level that stresses nonviolence and rationality. The rhetorically violent apostrophe, then, punctuates a series of political evils that demand action, but the violence of the apostrophe is followed by a sequence accenting rational analysis and peaceful discussion, not storming the barricades. To use Thelwall's own phrasing, he simultaneously "disavows and approves" his own intemperate rhetoric.
The ambiguity of political language and the discourse of treason is well illustrated by yet another aspect of the charges against Thelwall at his trial, his behavior at Covent Garden during a performance of Otway's Venice Preserved. He led a round of vigorous applause after the Pierre-Jaffeir dialogue early in act one, where the conspirators speak lines that were construed because of the applause to have immediate political reference. The applause would have stopped the play temporarily at the end of Pierre's speech:
We've neither safety, unity, nor peace;
The foundation's lost of common good.
Justice is lame, as well as blind, amongst us;
The laws (corrupted to the ends that make 'em)
Serve but for instruments of some new tyranny,
That every day starts up t' enslave us deeper.
The intervention of Thelwall's applause at such an early part of the play recontextualizes the entire drama. After two more nights of similarly political applause at the same lines, the play was "shelved." Thelwall remarks that the play, despite its original intentions to "pay court" to Charles the Second and satirize the Shaftesbury conspiracy, "was, at this time, converted into a provocative, not an antidote to jacobinism, and the following year, during the discussion of the 'Convention' bills, was played nightly, at Covent-garden Theatre, to thronged houses, who loudly applauded its popular sentences" (Life 286).
Wedderburn and Literacy
Let me give one last example of how the discourse of subversion can be determined by recontextualization. In Robert Wedderburn's trial for blasphemy in 1820 there was an interesting incident that illustrates yet again that the discourse of subversion depends on context more than the words themselves. Wedderburn was a popular Spencean lecturer, the son of a Jamaican slave mother and a Scottish planter who disowned him. 7 His radical political lectures included satirical criticism of the Bible and the Anglican Church. Because he presented himself as virtually illiterate at the trial, the judge and jury were inclined to show him mercy and reduce Wedderburn's sentence. However, at the sentencing hearing he presented to the court a long radical speech that had been written out. It angered both prosecutor and judge who now perceived Wedderburn as unrepentantly seditious and blasphemous. The jury had found him guilty of blasphemy but had recommended mercy in sentencing on account of his lack of "parental care" (Perkins 20). 8 The prosecutor remarked that the jury had recommended mercy only because it thought he was ignorant, but "if he was the author of that paper, which displayed considerable information," he deserved the full legal punishment (Slavery 139). In reply Wedderburn said "it was true he could not write, but that he had caused his ideas to be committed to writing by another person" (Slavery 139). The prosecutor could not recommend mercy because Wedderburn, able to write or not, was a "dangerous" man with "considerable talents, and those too of a popular nature, and calculated to do much mischief amongst the class of people to whom he was in the habit of addressing himself" (139). The case of Wedderburn suggests that not the text itself but only the text as inflected in certain ways by context determines the degree of subversion in a discourse. In an earlier blasphemy trial Wedderburn had convinced a jury that his unorthodox and apparently disrespectful interpretations of the Bible were dictated by his vocation as a Dissenting preacher. As Dissenting lecturer or victim of slavery rather than a political radical, Wedderburn and his texts could be viewed as far less culpable.
To conclude then: the discourse of subversion is a site of political contention, but that discourse also constrains and determines the very nature of the contention. In Shelley's letter to Ollier he cites Beatrice's subversive words as if they were his own, at once identifying with and distancing himself from actual rebellion. Godwin sacrifices his anarchism to refute Judge Eyre, but mimics Judge Eyre inadvertently in the religious rhetoric against political extremism. Thelwall is forced by the logic of constructive treason to psychologize his politics. He uses that same psychologizing as a rhetorical trope to structure his political arguments. Or maybe one should say the trope uses him. Thelwall practices the radical hermeneutics of constructive treason when he turns Otway's play into democratic protest. Finally, Wedderburn achieves yet another recontextualization of subversion when he has the trial transcript published as a radical tract so that even from prison he can have the last word.
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